STOCK PURCHASE AGREEMENT by and between BOIS D’ARC ENERGY, INC. and COMSTOCK RESOURCES, INC.
Exhibit 2.1
by and between
BOIS D’ARC ENERGY, INC.
and
XXXXXXXX RESOURCES, INC.
Table of Contents
ARTICLE I — DEFINITIONS |
1 | |||
Section 1.01 Definitions |
1 | |||
Section 1.02 Accounting Procedures and Interpretation |
3 | |||
ARTICLE II — AGREEMENT TO SELL AND PURCHASE |
3 | |||
Section 2.01 Authorization of Sale of Common Stock |
3 | |||
Section 2.02 Sale and Purchase |
3 | |||
Section 2.03 Closing |
3 | |||
Section 2.04 Conditions to the Closing |
3 | |||
Section 2.05 Bois d’Arc Deliveries |
4 | |||
Section 2.06 Xxxxxxxx’x Deliveries |
5 | |||
ARTICLE III — REPRESENTATIONS AND WARRANTIES RELATED TO BOIS D’ARC |
5 | |||
Section 3.01 Corporate Existence |
5 | |||
Section 3.02 Capitalization and Valid Issuance of Purchased Shares |
6 | |||
Section 3.03 Litigation |
6 | |||
Section 3.04 No Conflicts; Compliance with Laws |
6 | |||
Section 3.05 Authority, Enforceability |
7 | |||
Section 3.06 Approvals |
7 | |||
Section 3.07 No Registration |
7 | |||
Section 3.08 Listing and Maintenance Requirements |
7 | |||
ARTICLE IV — REPRESENTATIONS AND WARRANTIES AND
COVENANTS OF XXXXXXXX |
7 | |||
Section 4.01 Existence |
7 | |||
Section 4.02 Authorization, Enforceability |
7 | |||
Section 4.03 No Breach |
8 | |||
Section 4.04 Certain Fees |
8 | |||
Section 4.05 Unregistered Securities |
8 | |||
ARTICLE V — INDEMNIFICATION, COSTS AND EXPENSES |
8 | |||
Section 5.01 Indemnification by Bois d’Arc |
8 | |||
Section 5.02 Indemnification by Xxxxxxxx |
9 | |||
Section 5.03 Indemnification Procedure |
9 | |||
ARTICLE VI — MISCELLANEOUS |
10 | |||
Section 6.01 Interpretation and Survival of Provisions |
10 | |||
Section 6.02 Survival of Provisions |
10 | |||
Section 6.03 No Waiver; Modifications in Writing |
10 | |||
Section 6.04 Binding Effect |
11 | |||
Section 6.05 Communications |
11 | |||
Section 6.06 Entire Agreement |
11 | |||
Section 6.07 Governing Law |
11 | |||
Section 6.08 Execution in Counterparts |
12 | |||
Section 6.09 Termination |
12 |
(i)
This STOCK PURCHASE AGREEMENT, dated as of August 25, 2006 (this “Agreement”), is by
and between Bois d’Arc Energy, Inc., a Nevada corporation (“Bois d’Arc”), and Xxxxxxxx
Resources, Inc., a Nevada corporation (“Xxxxxxxx”).
WHEREAS, Bois d’Arc desires to raise capital through the issuance of its common stock, $.01
par value (“Common Stock”), which funds will be used to pay down Bois d’Arc’s bank debt;
WHEREAS, Xxxxxxxx desires to purchase 2,250,000 shares of Common Stock.
NOW THEREFORE, in consideration of the mutual covenants and agreements set forth herein and
for good and valuable consideration, the receipt of which is hereby acknowledged, the parties
hereby agree as follows:
ARTICLE I
DEFINITIONS
DEFINITIONS
Section 1.01 Definitions. As used in this Agreement, and unless the context requires
a different meaning, the following terms have the meanings indicated:
“Bois d’Arc Parties” means Bois d’Arc and all of Bois d’Arc’s Subsidiaries.
“Bylaws” means the complete and correct Bylaws of Bois d’Arc as in full force and effect on
the date hereof and the Closing Date, as applicable.
“Closing” shall have the meaning specified in Section 2.03.
“Closing Date” shall have the meaning specified in Section 2.03.
“Commission” means the United States Securities and Exchange Commission.
“Common Stock” shall have the meaning specified in the recitals.
“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, and
the rules and regulations of the Commission promulgated thereunder.
“GAAP” means generally accepted accounting principles in the United States of America in
effect from time to time.
“Governmental Authority” means, with respect to a particular Person, any country, state,
county, city and political subdivision in which such Person or such Person’s Property is located or
which exercises valid jurisdiction over any such Person or such Person’s Property, and any court,
agency, department, commission, board, bureau or instrumentality of any of them and any monetary
authority which exercises valid jurisdiction over any such Person or such Person’s Property.
Unless otherwise specified, all references to Governmental Authority herein with respect to Bois
d’Arc means a Governmental Authority having jurisdiction over Bois d’Arc, its Subsidiaries or any
of their respective Properties.
“Indemnified Party” shall have the meaning specified in Section 5.03.
“Indemnifying Party” shall have the meaning specified in Section 5.03.
“Law” means any federal, state, local or foreign order, writ, injunction, judgment,
settlement, award, decree, statute, law, rule or regulation.
“Lien” means any interest in Property securing an obligation owed to, or a claim by, a Person
other than the owner of the Property, whether such interest is based on the common law, statute or
contract, and whether such obligation or claim is fixed or contingent, and including but not
limited to the lien or security interest arising from a mortgage, encumbrance, pledge, security
agreement, conditional sale or trust receipt or a lease, consignment or bailment for security
purposes. For the purpose of this Agreement, a Person shall be deemed to be the owner of any
Property which it has acquired or holds subject to a conditional sale agreement, or leases under a
financing lease or other arrangement pursuant to which title to the Property has been retained by
or vested in some other Person in a transaction intended to create a financing.
“Material Adverse Effect” means any material and adverse effect on (a) the assets,
liabilities, financial condition, business, operations, affairs or prospects of Bois d’Arc and its
Subsidiaries taken as a whole; (b) the ability of Bois d’Arc and its Subsidiaries taken as a whole
to carry out their business as such business is conducted as of the date hereof or to meet their
obligations under this Agreement on a timely basis; or (c) the ability of Bois d’Arc to consummate
the transactions under this Agreement; provided, however, that a Material Adverse
Effect shall not include any material and adverse effect on the foregoing to the extent such
material and adverse effect results from, arises out of, or relates to (w) the announcement or
pendency of this Agreement, (x) a general deterioration in the economy or changes in the general
state of the industries in which the Bois d’Arc Parties operate; (y) the outbreak or escalation of
hostilities involving the United States, the declaration by the United States of a national
emergency or war or the occurrence of any other calamity or crisis, including acts of terrorism, or
(z) any change in accounting requirements or principles imposed upon Bois d’Arc and its
Subsidiaries or their respective businesses or any change in applicable Law, or the interpretation
thereof.
“NYSE” means the New York Stock Exchange.
“Person” means any individual, corporation, company, voluntary association, partnership, joint
venture, trust, limited liability company, unincorporated organization or government or any agency,
instrumentality or political subdivision thereof, or any other form of entity.
“Property” means any interest in any kind of property or asset, whether real, personal or
mixed, or tangible or intangible.
“Purchase Price” means $35,865,000, which amount represents the Purchased Shares multiplied by
$15.94, the closing price of the Common Stock on the NYSE on the date hereof.
“Purchased Shares” has the meaning set forth in Section 2.01.
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“Representatives” of any Person means the officers, directors, managers, employees, agents,
counsel, accountants, investment bankers and other representatives of such Person.
“Securities Act” means the Securities Act of 1933, as amended from time to time, and the rules
and regulations of the Commission promulgated thereunder.
“Subsidiary” means, as to any Person, any corporation or other entity of which: (i) such
Person or a Subsidiary of such Person is a general partner or manager; or (ii) at least a majority
of the outstanding equity interest having by the terms thereof ordinary voting power to elect a
majority of the board of directors or similar governing body of such corporation or other entity
(irrespective of whether or not at the time any equity interest of any other class or classes of
such corporation or other entity shall have or might have voting power by reason of the happening
of any contingency) is at the time directly or indirectly owned or controlled by such Person or one
or more of its Subsidiaries.
Section 1.02 Accounting Procedures and Interpretation. Unless otherwise specified
herein, all accounting terms used herein shall be interpreted, all determinations with respect to
accounting matters hereunder shall be made, and all Bois d’Arc financial statements and
certificates and reports as to financial matters required to be furnished to the Purchasers
hereunder shall be prepared, in accordance with GAAP applied on a consistent basis during the
periods involved (except as may be indicated in the notes thereto or, in the case of unaudited
statements, as permitted by Form 10-Q promulgated by the Commission) and in compliance as to form
in all material respects with applicable accounting requirements and with the published rules and
regulations of the Commission with respect thereto.
ARTICLE II
AGREEMENT TO SELL AND PURCHASE
AGREEMENT TO SELL AND PURCHASE
Section 2.01 Authorization of Sale of Common Stock. Bois d’Arc has authorized the
issuance and sale to Xxxxxxxx of 2,250,000 shares of Common Stock (the “Purchased Shares”).
Section 2.02 Sale and Purchase. Subject to the terms and conditions hereof, Bois
d’Arc hereby agrees to issue and sell to Xxxxxxxx, free and clear of any and all Liens, and
Xxxxxxxx hereby agrees to purchase from Bois d’Arc, the Purchased Shares and Xxxxxxxx agrees to pay
Bois d’Arc the Purchase Price.
Section 2.03 Closing. Subject to the terms and conditions hereof, the consummation of
the purchase and sale of the Purchased Shares hereunder (the “Closing”) shall take place at
the offices of Xxxxx Liddell & Xxxx LLP, 0000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000 on
August 31, 2006 or such other date as the parties so determine (the date of such closing on such
date as the parties so determine, the “Closing Date”).
Section 2.04 Conditions to the Closing.
(a) Mutual Conditions. The respective obligations of each party to consummate the
purchase and issuance and sale of the Purchased Shares shall be subject to the satisfaction on or
prior to the Closing Date of each of the following conditions (any or all of
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which may be waived by a particular party on behalf of itself in writing, in whole or in part,
to the extent permitted by applicable Law):
(i) no Law shall have been enacted or promulgated, and no action shall have been taken,
by any Governmental Authority which temporarily, preliminarily or permanently restrains,
precludes, enjoins or otherwise prohibits the consummation of the transactions contemplated
hereby or makes the transactions contemplated hereby illegal; and
(ii) there shall not be pending any suit, action or proceeding by any Governmental
Authority seeking to restrain, preclude, enjoin or prohibit the transactions contemplated by
this Agreement.
(b) Xxxxxxxx’x Conditions. The obligation of Xxxxxxxx to consummate the purchase of
the Purchased Shares shall be subject to the satisfaction on or prior to the Closing Date of each
of the following conditions (any or all of which may be waived by Xxxxxxxx in writing, to the
extent permitted by applicable Law):
(i) since the date of this Agreement, no Material Adverse Effect shall have occurred
and be continuing;
(ii) the representations and warranties of Bois d’Arc contained in this Agreement that
are qualified by materiality or a Material Adverse Effect shall be true and correct as of
the Closing Date as if made on and as of the Closing Date and all other representations and
warranties shall be true and correct in all material respects as of the Closing Date as if
made on and as of the Closing Date (except that representations made as of a specific date
shall be required to be true and correct as of such date only); and
(iii) Bois d’Arc shall have delivered, or caused to be delivered, to Xxxxxxxx at the
Closing, Bois d’Arc’s closing deliveries described in Section 2.06.
(c) Bois d’Arc’s Conditions. The obligation of Bois d’Arc to consummate the sale of
the Purchased Shares to Xxxxxxxx shall be subject to the satisfaction on or prior to the Closing
Date of each of the following conditions (which may be waived by Bois d’Arc in writing, to the
extent permitted by applicable Law):
(i) the representations and warranties of Xxxxxxxx contained in this Agreement shall be
true and correct in all material respects at and as of the Closing Date as if made on and as
of the Closing Date (except that representations made as of a specific date shall be
required to be true and correct as of such date only); and
(ii) Xxxxxxxx shall have delivered, or cause to be delivered, to Bois d’Arc at the
Closing, Xxxxxxxx’x closing deliveries described in Section 2.05.
Section 2.05 Bois d’Arc Deliveries. At the Closing, subject to the terms and
conditions hereof, Bois d’Arc will deliver, or cause to be delivered, to Xxxxxxxx:
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(a) A certificate or certificates representing the Purchased Shares (bearing the legend set
forth in Section 4.05(b)), free and clear of any Liens, other than transfer restrictions
under applicable federal and state securities Laws;
(b) A certificate of the Secretary of State of the State of Nevada, dated a recent date, that
Bois d’Arc is in good standing;
(c) A cross-receipt executed by Bois d’Arc and delivered to Xxxxxxxx certifying that it has
received the Purchase Price as of the Closing Date; and
(d) A certificate of the Secretary of Bois d’Arc certifying as to board resolutions
authorizing the execution and delivery of this Agreement and the consummation of the transactions
contemplated hereby.
Section 2.06 Xxxxxxxx’x Deliveries. At the Closing, subject to the terms and
conditions hereof, Xxxxxxxx will deliver, or cause to be delivered, to Bois d’Arc:
(a) Payment to Bois d’Arc of the Purchase Price by wire transfer of immediately available
funds to an account designated by Bois d’Arc; and
(b) A cross-receipt executed by Xxxxxxxx and delivered to Bois d’Arc certifying that it has
received the Purchased Shares as of the Closing Date.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
RELATED TO BOIS D’ARC
REPRESENTATIONS AND WARRANTIES
RELATED TO BOIS D’ARC
Bois d’Arc represents and warrants to Xxxxxxxx as follows:
Section 3.01 Corporate Existence. Bois d’Arc (a) is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of Nevada; and (b) has all
requisite power and authority, and has all governmental licenses, authorizations, consents and
approvals necessary, to own, lease, use and operate its Properties and carry on its business as its
business is now being conducted, except where the failure to obtain such licenses, authorizations,
consents and approvals would not be reasonably likely to have a Material Adverse Effect. Each of
Bois d’Arc’s Subsidiaries has been duly incorporated or formed, as the case may be, and is validly
existing and in good standing under the laws of the State or other jurisdiction of its
incorporation or organization, as the case may be, and has all requisite power and authority, and
has all governmental licenses, authorizations, consents and approvals necessary, to own, lease, use
or operate its respective Properties and carry on its business as now being conducted, except where
the failure to obtain such licenses, authorizations, consents and approvals would not be reasonably
likely to have a Material Adverse Effect. None of Bois d’Arc nor any of its Subsidiaries are in
default in the performance, observance or fulfillment of any provision of its respective
certificate of incorporation, certification of formation, Bylaws, partnership agreement, limited
liability company agreement or other similar organizational documents. Each of Bois d’Arc and its
Subsidiaries is duly qualified or licensed and in good standing as a foreign limited partnership,
limited liability company or corporation, as applicable, and is authorized to do business in each
jurisdiction in which the ownership or leasing of its respective Properties or the
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character of its respective operations makes such qualification necessary, except where the
failure to obtain such qualification, license, authorization or good standing would not be
reasonably likely to have a Material Adverse Effect.
Section 3.02 Capitalization and Valid Issuance of Purchased Shares.
(a) As of the date of this Agreement, the issued and outstanding capital stock of Bois d’Arc
consist of 64,155,000 shares of Common Stock. All outstanding shares of Common Stock have been
duly authorized and validly issued and are fully paid and nonassessable.
(b) The Common Stock being purchased by Xxxxxxxx hereunder will be duly authorized by Bois
d’Arc prior to the Closing and, when issued and delivered to Xxxxxxxx against payment therefor in
accordance with the terms of this Agreement, will be validly issued, fully paid and nonassessable
and will be free of any and all Liens and restrictions on transfer, other than restrictions on
transfer under this Agreement and under applicable state and federal securities Laws.
Section 3.03 Litigation. Except as set forth in the Bois d’Arc filings with the
Commission under the Securities Act and the Exchange Act, there is no action, suit, or proceeding
pending (including any investigation, litigation or inquiry) or, to Bois d’Arc’s knowledge,
contemplated or threatened against or affecting any of the Bois d’Arc Parties or any of their
respective officers, directors, properties or assets, which (a) questions the validity of this
Agreement or the right of Bois d’Arc to enter into this Agreement or to consummate the transactions
contemplated hereby or (b) (individually or in the aggregate) would be reasonably likely to result
in a Material Adverse Effect.
Section 3.04 No Conflicts; Compliance with Laws. The execution, delivery and
performance by Bois d’Arc of this Agreement and compliance by Bois d’Arc with the terms and
provisions hereof, and the issuance and sale by Bois d’Arc of the Purchased Shares, do not and will
not (a) assuming the accuracy of the representations and warranties of Xxxxxxxx contained herein
and its compliance with the covenants contained herein, violate any provision of any Law or Permit
having applicability to Bois d’Arc or any of its Subsidiaries or any of their respective
Properties, (b) conflict with or result in a violation or breach of any provision of the
certificate of incorporation or Bylaws, each as amended to date, of Bois d’Arc or any
organizational documents of any of Bois d’Arc’s Subsidiaries, (c) require any consent, approval or
notice under or result in a violation or breach of or constitute (with or without due notice or
lapse of time or both) a default (or give rise to any right of termination, cancellation or
acceleration) under any contract, agreement, instrument, obligation, note, bond, mortgage, license,
loan or credit agreement to which Bois d’Arc or any of its Subsidiaries is a party or by which Bois
d’Arc or any of its Subsidiaries or any of their respective Properties may be bound, or (d) result
in or require the creation or imposition of any Lien upon or with respect to any of the Properties
now owned or hereafter acquired by Bois d’Arc or any of its Subsidiaries, except where any such
conflict, violation, default, breach, termination, cancellation, failure to receive consent or
approval, or acceleration with respect to the foregoing provisions of this Section 3.04
would not be, individually or in the aggregate, reasonably likely to result in a Material Adverse
Effect. Neither Bois d’Arc nor any of its Subsidiaries is in violation of any judgment, decree or
order or any Law
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applicable to Bois d’Arc or its Subsidiaries, except as would not, individually or in the
aggregate, have a Material Adverse Effect.
Section 3.05 Authority, Enforceability. Bois d’Arc has all necessary corporate power
and authority to execute, deliver and perform its obligations under this Agreement, and the
execution, delivery and performance by Bois d’Arc of this Agreement has been duly authorized by all
necessary action; and this Agreement constitutes the legal, valid and binding obligation of Bois
d’Arc, enforceable in accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, fraudulent transfer and similar Laws affecting creditors’ rights generally
or by general principles of equity and except as the rights to indemnification may be limited by
applicable Law. No approval from the holders of Common Stock is required in connection with Bois
d’Arc’s issuance and sale of the Purchased Shares to Xxxxxxxx.
Section 3.06 Approvals. Except for approvals which have already been obtained and the
approval by the NYSE of Bois d’Arc’s listing application for the Purchased Shares, no
authorization, consent, approval, waiver, license, qualification or written exemption from, nor any
filing, declaration, qualification or registration with, any Governmental Authority or any other
Person is required in connection with the execution, delivery or performance by Bois d’Arc of this
Agreement, except where the failure to receive such authorization, consent, approval, waiver,
license, qualification or written exemption from, or to make such filing, declaration,
qualification or registration would not, individually or in the aggregate, be reasonably likely to
have a Material Adverse Effect.
Section 3.07 No Registration. Assuming the accuracy of the representations and
warranties of Xxxxxxxx contained in this Agreement, the issuance and sale of the Purchased Shares
pursuant to this Agreement is exempt from registration requirements of the Securities Act of 1933,
as amended.
Section 3.08 Listing and Maintenance Requirements. Bois d’Arc has not received notice
(written or oral) from the NYSE to the effect that it is not in compliance with the listing or
maintenance requirements thereof and to its knowledge, Bois d’Arc is in compliance with all such
listing and maintenance requirements. The issuance and sale of the Purchased Shares does not
contravene NYSE rules and regulations.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES AND COVENANTS
OF XXXXXXXX
REPRESENTATIONS AND WARRANTIES AND COVENANTS
OF XXXXXXXX
Xxxxxxxx hereby represents and warrants and covenants to Bois d’Arc that:
Section 4.01 Existence. Xxxxxxxx is a corporation duly organized, validly existing
and in good standing under the laws of the State of Nevada, with all necessary power and authority
to own properties and to conduct its business as currently conducted.
Section 4.02 Authorization, Enforceability. Xxxxxxxx has all necessary legal power
and authority to enter into, deliver and perform its obligations under this Agreement. The
execution, delivery and performance of this Agreement by Xxxxxxxx and the consummation by it of the
transactions contemplated hereby and thereby have been duly and validly authorized by
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all necessary legal action, and no further consent or authorization of Xxxxxxxx is required.
This Agreement has been duly executed and delivered by Xxxxxxxx and constitutes legal, valid and
binding obligations of Xxxxxxxx; provided that, the enforceability thereof may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws relating
to or affecting creditors’ rights generally and by general principles of equity and except as the
rights to indemnification may be limited applicable Law (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
Section 4.03 No Breach. The execution, delivery and performance of this Agreement by
Xxxxxxxx and the consummation by Xxxxxxxx of the transactions contemplated hereby and thereby will
not (a) conflict with or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any material agreement to which Xxxxxxxx is a party or by which
Xxxxxxxx is bound or to which any of the Property or assets of Xxxxxxxx is subject, (b) conflict
with or result in any violation of the provisions of the restated articles of incorporation or
bylaws of Xxxxxxxx, or (c) violate any Law of any Governmental Authority having jurisdiction over
Xxxxxxxx or the Property or assets of Xxxxxxxx, except in the case of clauses (a) and (c), for such
conflicts, breaches, violations or defaults as would not prevent the consummation of the
transactions contemplated by this Agreement and could not, individually or in the aggregate,
reasonably be expected to have a material adverse effect on the financial condition or prospects of
Xxxxxxxx.
Section 4.04 Certain Fees. No fees or commissions are or will be payable by Xxxxxxxx
to brokers, finders, or investment bankers with respect to the purchase of any of the Purchased
Shares or the consummation of the transaction contemplated by this Agreement.
Section 4.05 Unregistered Securities.
(a) Investment. The Purchased Shares are being acquired for Xxxxxxxx’x own account,
not as a nominee or agent, and with no intention of distributing the Purchased Shares or any part
thereof, and that Xxxxxxxx has no present intention of selling or distributing the same in any
transaction in violation of the securities Laws of the United States or any state.
(b) Legend. It is understood that the certificates evidencing the Purchased Shares
will bear the following legend: “These securities have not been registered under the Securities
Act of 1933, as amended. They may not be sold or offered for sale in the absence of a registration
statement in effect with respect to the securities under such Act or an opinion of counsel
satisfactory to the Company that such registration is not required or unless sold pursuant to Rule
144 of such Act.”
ARTICLE V
INDEMNIFICATION, COSTS AND EXPENSES
INDEMNIFICATION, COSTS AND EXPENSES
Section 5.01 Indemnification by Bois d’Arc. Bois d’Arc agrees to indemnify Xxxxxxxx
and its Representatives (collectively, “Xxxxxxxx Related Parties”) from, and hold each of
them harmless against, any and all losses, actions, suits, proceedings (including any
investigations, litigation or inquiries), demands, and causes of action, and, in connection
therewith, and promptly upon demand, pay or reimburse each of them for all reasonable costs,
losses, liabilities,
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damages, or expenses of any kind or nature whatsoever, including, without limitation, the
reasonable fees and disbursements of counsel and all other reasonable expenses incurred in
connection with investigating, defending or preparing to defend any such matter that may be
incurred by them or asserted against or involve any of them as a result of, arising out of, or in
any way related to the breach of any of the representations, warranties or covenants of Bois d’Arc
contained herein.
Section 5.02 Indemnification by Xxxxxxxx. Xxxxxxxx agrees to indemnify Bois d’Arc and
its Representatives (collectively, “Bois d’Arc Related Parties”) from, and hold each of
them harmless against, any and all losses, actions, suits, proceedings (including any
investigations, litigation or inquiries), demands, and causes of action, and, in connection
therewith, and promptly upon demand, pay or reimburse each of them for all reasonable costs,
losses, liabilities, damages, or expenses of any kind or nature whatsoever, including, without
limitation, the reasonable fees and disbursements of counsel and all other reasonable expenses
incurred in connection with investigating, defending or preparing to defend any such matter that
may be incurred by them or asserted against or involve any of them as a result of, arising out of,
or in any way related to the breach of any of the representations, warranties or covenants of
Xxxxxxxx contained herein.
Section 5.03 Indemnification Procedure. Promptly after any Bois d’Arc Related Party
or Xxxxxxxx Related Party (hereinafter, the “Indemnified Party”) has received notice of any
indemnifiable claim hereunder, or the commencement of any action, suit or proceeding by a third
person, which the Indemnified Party believes in good faith is an indemnifiable claim under this
Agreement, the Indemnified Party shall give the indemnitor hereunder (the “Indemnifying
Party”) written notice of such claim or the commencement of such action, suit or proceeding,
but failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any
liability it may have to such Indemnified Party hereunder except to the extent that the
Indemnifying Party is materially prejudiced by such failure. Such notice shall state the nature and
the basis of such claim to the extent then known. The Indemnifying Party shall have the right to
defend and settle, at its own expense and by its own counsel, any such matter as long as the
Indemnifying Party pursues the same diligently and in good faith. If the Indemnifying Party
undertakes to defend or settle, it shall promptly notify the Indemnified Party of its intention to
do so, and the Indemnified Party shall cooperate with the Indemnifying Party and its counsel in all
commercially reasonable respects in the defense thereof and the settlement thereof. Such
cooperation shall include, but shall not be limited to, furnishing the Indemnifying Party with any
books, records and other information reasonably requested by the Indemnifying Party and in the
Indemnified Party’s possession or control. Such cooperation of the Indemnified Party shall be at
the cost of the Indemnifying Party. After the Indemnifying Party has notified the Indemnified
Party of its intention to undertake to defend or settle any such asserted liability, and for so
long as the Indemnifying Party diligently pursues such defense, the Indemnifying Party shall not be
liable for any additional legal expenses incurred by the Indemnified Party in connection with any
defense or settlement of such asserted liability; provided, however, that the
Indemnified Party shall be entitled (i) at its expense, to participate in the defense of such
asserted liability and the negotiations of the settlement thereof and (ii) if (A) the Indemnifying
Party has failed to assume the defense and employ counsel or (B) if the defendants in any such
action include both the Indemnified Party and the Indemnifying Party and counsel to the Indemnified
Party shall have concluded that there may be reasonable defenses available to the Indemnified Party
that are
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different from or in addition to those available to the Indemnifying Party or if the interests
of the Indemnified Party reasonably may be deemed to conflict with the interests of the
Indemnifying Party, then the Indemnified Party shall have the right to select a separate counsel
and to assume such legal defense and otherwise to participate in the defense of such action, with
the expenses and fees of such separate counsel and other expenses related to such participation to
be reimbursed by the Indemnifying Party as incurred. Notwithstanding any other provision of this
Agreement, the Indemnifying Party shall not settle any indemnified claim without the consent of the
Indemnified Party, unless the settlement thereof imposes no liability or obligation on, and
includes a complete release from liability of and does not contain any admission of wrong doing by,
the Indemnified Party.
ARTICLE VI
MISCELLANEOUS
MISCELLANEOUS
Section 6.01 Interpretation and Survival of Provisions. Article, Section, Schedule,
and Exhibit references are to this Agreement, unless otherwise specified. All references to
instruments, documents, contracts, and agreements are references to such instruments, documents,
contracts, and agreements as the same may be amended, supplemented, and otherwise modified from
time to time, unless otherwise specified. The word “including” shall mean “including but not
limited to.” If any provision herein is held to be illegal, invalid, not binding, or
unenforceable, such provision shall be fully severable and this Agreement shall be construed and
enforced as if such illegal, invalid, not binding, or unenforceable provision had never comprised a
part hereof, and the remaining provisions shall remain in full force and effect.
Section 6.02 Survival of Provisions. The representations and warranties set forth
herein shall survive for a period of twelve (12) months following the Closing Date regardless of
any investigation made by or on behalf of either party. The covenants made in this Agreement shall
survive the Closing of the transactions described herein and remain operative and in full force and
effect regardless of acceptance of any of the Purchased Shares and payment therefor. All
indemnification obligations of Bois d’Arc and Xxxxxxxx and the provisions of Article V shall remain
operative and in full force and effect unless such obligations are expressly terminated in a
writing referencing that individual Section, regardless of any purported general termination of
this Agreement.
Section 6.03 No Waiver; Modifications in Writing.
(a) Delay. No failure or delay on the part of any party in exercising any right,
power, or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power, or remedy preclude any other or further exercise thereof or the
exercise of any other right, power, or remedy. The remedies provided for herein are cumulative and
are not exclusive of any remedies that may be available to a party at law or in equity or
otherwise.
(b) Specific Waiver. Except as otherwise provided herein, no amendment, waiver,
consent, modification, or termination of any provision of this Agreement shall be effective unless
signed by each of the parties hereto or thereto affected by such amendment, waiver, consent,
modification, or termination. Any amendment, supplement or modification of
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or to any provision of this Agreement, any waiver of any provision of this Agreement, and any
consent to any departure by either party from the terms of any provision of this Agreement shall be
effective only in the specific instance and for the specific purpose for which made or given.
Section 6.04 Binding Effect. This Agreement shall be binding upon the parties and
their respective successors and permitted assigns. Except as expressly provided in this Agreement,
this Agreement shall not be construed so as to confer any right or benefit upon any Person other
than the parties to this Agreement and their respective successors and permitted assigns.
Section 6.05 Communications. All notices and demands provided for hereunder shall be
in writing and shall be given by registered or certified mail, return receipt requested, telecopy,
air courier guaranteeing overnight delivery or personal delivery to the following addresses:
| (a) | If to Bois d’Arc: | ||
| Bois d’Arc Energy, Inc. 000 Xxxxxx Xxxxxx, Xxxxx 0000 Xxxxxxx, Xxxxx 00000 Facsimile: (000) 000-0000 Attn: Chief Executive Officer |
|||
| (b) | Xxxxxxxx: | ||
| Xxxxxxxx Resources, Inc. 0000 Xxxx xxx Xxxxxxx Xxxx., Xxxxx 000 Xxxxxx, Xxxxx 00000 Facsimile: (000) 000-0000 Attn: Chief Executive Officer |
or to such other address as either party may designate in writing. All notices and communications
shall be deemed to have been duly given: at the time delivered by hand, if personally delivered;
upon actual receipt if sent by certified mail, return receipt requested, or regular mail, if
mailed; when receipt acknowledged, if sent via facsimile; and upon actual receipt when delivered to
an air courier guaranteeing overnight delivery.
Section 6.06 Entire Agreement. This Agreement and the other agreements and documents
referred to herein are intended by the parties as a final expression of their agreement and
intended to be a complete and exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein and therein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to herein. This
Agreement and the other documents referred to herein or therein supersede all prior agreements and
understandings between the parties with respect to such subject matter.
Section 6.07 Governing Law. This Agreement will be construed in accordance with and
governed by the laws of the State of Texas without regard to principles of conflicts of laws.
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Section 6.08 Execution in Counterparts. This Agreement may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each of which
counterparts, when so executed and delivered, shall be deemed to be an original and all of which
counterparts, taken together, shall constitute but one and the same Agreement.
Section 6.09 Termination.
(a) In the event that any of the conditions to a party’s obligation to close specified in
Section 2.04 is not satisfied at or prior to the Closing Date, such party may terminate
this Agreement.
(b) In the
event that the Closing Date does not take place on or before August 31, 2006,
either party may terminate this Agreement; provided, however, that a party shall not be permitted
to terminate this Agreement pursuant to this Section 6.09(b) if the failure to consummate the
transactions contemplated by this Agreement by such date is primarily attributable to a failure on
the part of such party to perform any covenant in this Agreement required to be performed by such
party.
(c) In the event of any termination of this Agreement pursuant to this Section 6.09,
this Agreement shall forthwith become null and void. In the event of such termination, there shall
be no liability on the part of any party hereto; provided that nothing herein shall relieve any
party from any liability or obligation with respect to any willful breach of this Agreement.
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IN WITNESS WHEREOF, the parties hereto execute this Agreement, effective as of the date first
above written.
| BOIS D’ARC ENERGY, INC. |
||||
| By: | /s/ XXXXX X. XXXXXX | |||
| Xxxxx X. Xxxxxx | ||||
| Chief Executive Officer | ||||
| XXXXXXXX RESOURCES, INC. |
||||
| By: | /s/ M. XXX XXXXXXX | |||
| M. Xxx Xxxxxxx, President and | ||||
| Chief Executive Officer | ||||
