SHAREHOLDER'S AGREEMENT
This Shareholder's Agreement (this "Agreement"), dated January 31, 1997, is
among Drillers, Inc., a Texas corporation ("Buyer"), DI Industries, Inc., a
Texas corporation ("DI") and F.C. West ("Shareholder").
WHEREAS, Buyer and Xxxxxxxx Drilling Company (the "Company"), a Texas
corporation, are parties to an Asset Purchase Agreement dated December 31, 1996
(the "Asset Purchase Agreement"), which provides, upon the terms and subject to
the conditions thereof, for the acquisition by Buyer of substantially all of the
assets of the Company ("Assets");
WHEREAS, in order to induce Buyer to consummate the transactions
contemplated by the Asset Purchase Agreement, Shareholder has agreed to execute
and deliver this Agreement as provided in Section 8.4 of the Asset Purchase
Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements set forth herein, the parties hereto agree as follows:
1. Guaranty of Company Indemnification Obligation.
(a) The Shareholder hereby irrevocably and unconditionally guarantees
to Buyer the prompt and full discharge by the Company of all of the Company's
covenants, agreements, obligations and liabilities under Section 9.1 of the
Asset Purchase Agreement including, without limitation, the due and punctual
payment of all amounts which are or may become due and payable by the Company
thereunder when and as the same shall become due and payable (collectively, the
"Company Obligations"), in accordance with the terms hereof. The Shareholder
acknowledges and agrees that, with respect to the Company Obligations, such
guaranty shall be a guaranty of payment and performance and not of collection
and shall not be conditioned or contingent upon the pursuit of any remedies
against the Company. If the Company shall default in the due and punctual
performance of any Company Obligation, including the full and timely payment of
any amount due and payable pursuant to any Company Obligation, the Shareholder
will forthwith perform or cause to be performed such Company Obligation and will
forthwith make full payment of any amount due with respect thereto at its sole
cost and expense. The liabilities and obligations of the Shareholder pursuant to
this Agreement are unconditional and absolute and, without limiting the
generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(1) any acceleration, extension, renewal, settlement, compromise,
waiver or release in respect of any Company Obligation by operation of law
or otherwise;
(2) the invalidity or unenforceability, in whole or in part, of this
Agreement or the Asset Purchase Agreement;
(3) any modification or amendment of or supplement to this Agreement
or the Asset Purchase Agreement;
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(4) any change in the corporate existence, structure or ownership of
Buyer or the Company, or any insolvency, bankruptcy, reorganization or
other similar proceeding affecting either of them or their assets; or
(5) any other act, omission to act, delay of any kind by any party
hereto or any other person, or any other circumstance whatsoever that
might, but for the provisions of this Section 1(a), constitute a legal or
equitable discharge of the obligations of the Shareholder hereunder.
(b) The Shareholder hereby waives any right, whether legal or equitable,
statutory or non-statutory, to require Buyer to proceed against or take any
action against or pursue any remedy with respect to the Company or any other
person or make presentment or demand for performance or give any notice of
nonperformance before Buyer may enforce its rights hereunder against the
Shareholder.
(c) The Shareholder's obligations hereunder shall remain in full force and
effect until the Company Obligations shall have been performed in full. If at
any time any performance by any Person of any Company Obligation is rescinded or
must be otherwise restored or returned, whether upon the insolvency, bankruptcy
or reorganization of the Company or otherwise, the Shareholder's obligations
hereunder with respect to such Company Obligation shall be reinstated at such
time as though such Company Obligation had become due and had not been
performed.
(d) Upon performance by the Shareholder of any Company Obligation, the
Shareholder shall be subrogated to the rights of Buyer against the Company with
respect to such Company Obligation; provided, that the Shareholder shall not
enforce any Company Obligation by way of subrogation against the Company while
any Company Obligation is due and unperformed by the Company.
(e) Pursuant to Section 9.3 of the Asset Purchase Agreement,
notwithstanding any other provisions to the contrary in this Agreement, the
Shareholder's liability under this Section 1 shall be limited to the sum of
$1,000,000 cash or, if the Company so elects, shares of DI Common Stock with a
total value of $1,000,000 at the last reported sale price of DI Common Stock on
the American Stock Exchange averaged for the ten trading days prior to the date
of payment of such indemnified amount.
2. DI's Obligation to Issue Additional Shares.
DI shall issue to the Shareholder after the Determination Date (as defined
below) the number of shares of DI's Common Stock, par value $0.10 (the "Common
Stock"), issuable to the Shareholder, if any, under the terms and subject to the
conditions set forth in this Section 2 (the "Additional Shares"). The number of
Additional Shares issuable to the Shareholder shall be equal to the number of
shares of Common Stock calculated by dividing (i) the Shortfall Amount by (ii)
the Average DI Stock Price during the Measurement Period, as such terms are
hereafter defined. Any fractional share resulting from such calculation shall
be rounded up to the nearest whole share.
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(a) The term "SHORTFALL AMOUNT" shall mean with respect to each
Shareholder one-half of the positive difference, if any, between (i) the
product of (x) $2.00, multiplied by (y) the number of Distributed Shares,
minus (ii) the sum of (A) the gross proceeds of all Public Dispositions (as
such term is hereinafter defined), (B) the gross proceeds of all Private
Dispositions (as such term is hereinafter defined) and (C) the product of
(x) the Average DI Stock Price during the Measurement Period, multiplied by
(y) the number of Distributed Shares that remain beneficially owned by
Shareholder as of 5:00 p.m. New York, New York time on the Determination
Date.
(b) The term "DISTRIBUTED SHARES" shall mean, with respect to each
Shareholder, the number of shares of Common Stock distributed to such
Shareholder by the Company as a liquidating distribution.
(c) The term "DISPOSITION" shall mean and include a sale, assignment,
pledge, gift, transfer or other conveyance of some or all (or any undivided
interest in some or all) of the Common Stock, or any contract or option to
make any such sale, assignment, pledge, transfer or conveyance. The term
"PUBLIC DISPOSITION" shall mean a Disposition effected by the sale of all
or any portion of the Distributed Shares on the American Stock Exchange or
such other principal trading market on which the Common Stock is then
publicly traded. A Public Disposition shall be deemed to occur on the date
such transaction occurs rather than the settlement date thereof. The term
"PRIVATE DISPOSITION" shall mean any Disposition of Distributed Shares that
is not a Public Disposition, and does not result in the Shareholder
retaining beneficial ownership of the Distributed Shares. As used in this
Agreement, gross proceeds of a Private Disposition shall mean the greater
of: (i) the fair market value of all consideration given by the
transferee(s) in such Private Disposition, and (ii) the product of (A) the
Average DI Stock Price during the ten Trading Days (hereinafter defined)
immediately preceding the date of the Private Disposition multiplied by (B)
the number of Distributed Shares transferred in such Private Disposition.
(d) The term "AVERAGE DI STOCK PRICE" shall mean the average of the
last reported sale price regular way of the Common Stock on the American
Stock Exchange or other principal trading market on which the Common Stock
is then publicly traded calculated for the number of Trading Days over
which such average is to be computed, or if the principal market on which
the Common Stock is then traded does not report prices on the basis of sale
transactions, the average of the closing bid and ask prices for the Common
Stock over the applicable number of Trading Days.
(e) The term "MEASUREMENT PERIOD" shall mean the first ten Trading
Days immediately prior to and including the Determination Date on which
none of the Shareholders or their respective Affiliates shall have sold or
offered for sale any shares of the Common Stock in any public securities
market on which the Common Stock is then traded. In the event that any of
the Shareholders or their respective Affiliates have sold or offered for
sale Common Stock on a Trading Day that would otherwise be included in the
Measurement Period, such Trading Day shall be excluded from the Measurement
Period and in substitution for such day there shall be added to the
beginning of the
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Measurement Period the next preceding Trading Day on which no such sales or
offers were made by any of the Shareholders or their respective Affiliates.
For purposes of this paragraph (e), an offer of Common Stock shall be
deemed to have occurred in connection with an underwritten public offering
only from the period from and including the effective date of the
registration statement for the offering through and including the closing
date of such public offering. No offer of Common Stock shall be deemed to
have occurred for purposes of this paragraph (e) with respect to Common
Stock covered by a shelf registration statement under Rule 415 under the
Securities Act except on days on which orders for sales of Common Stock
have been placed by any Shareholder or their respective Affiliates on the
American Stock Exchange or other principal securities market on which the
Common Stock may then be publicly traded.
(f) A "TRADING DAY" shall mean a day on which the Common Stock is
traded on the American Stock Exchange, or the principal trading market on
which the Common Stock is then publicly traded if other than the American
Stock Exchange.
(g) The "DETERMINATION DATE" shall mean the one year anniversary of
the Closing Date under the Asset Purchase Agreement, unless the Shareholder
shall have sold all of the Shares before such anniversary date, in which
event the Determination Date shall be the next Trading Day following the
final sale of Shares.
(h) An "AFFILIATE" of a person shall have the meaning ascribed to that
term in Rule 12b-2 under the Securities Exchange Act of 1934, as amended
(the "Exchange Act") as promulgated by the U.S. Securities and Exchange
Commission (the "SEC"), and, with respect to a Shareholder, shall include
all of the Company's other Shareholders.
(i) Promptly after the Determination Date, but in no event later than
ten business days after the Determination Date, Shareholder shall deliver
to the Company an originally executed, written certification sworn to and
notarized by the Shareholder containing the following information:
(i) a true and complete description of each Public Disposition by
Shareholder through and including the Determination Date, which
description shall include the number of Distributed Shares included in
each Public Disposition, the date of each Public Disposition, and the
amount of gross proceeds from any such Public Disposition;
(ii) a true and correct description of the character and terms of
each Private Disposition, including, without limitation, the number of
Distributed Shares included in the Private Disposition, the date of
such Private Disposition, the amount of all cash consideration given
by the transferee, and the nature and fair market value of all noncash
consideration given by the transferee(s) for, or in connection with,
such Private Disposition; and
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(iii) the number of Distributed Shares that remain beneficially
owned by Shareholder as of 5:00 p.m. local time in New York, New York
on the Determination Date, and the owner of record of such Shares if
other than Shareholder.
(j) Examples. Attached as Exhibit F-1 are illustrations showing the
parties' intended interpretation and application of the provisions of this
Section 2 to certain hypothetical fact situations.
Upon request of DI, Shareholder shall promptly provide such other and further
information and documents and affidavits as DI may request to verify the number
of Additional Shares, if any, issuable pursuant to this Agreement.
(k) Within five business days after being furnished the information
required to be provided by the Shareholder under this Agreement or as may be
required to assure compliance by DI with federal and applicable state securities
laws, DI shall issue the Additional Shares and shall deliver to the Shareholder
a stock certificate for the Additional Shares duly registered in the name of the
Shareholder. Shareholder covenants and agrees that for a period of twelve
months following each sale of Distributed Shares during the Determination
Period, neither Shareholder nor its Affiliates shall purchase any shares of
Common Stock.
(l) Within five business days after being furnished the information
required to be provided by Shareholder under this Agreement or as may be
required to assure compliance by DI with federal and applicable state securities
laws, DI may, in its sole discretion, in lieu of issuing the Additional Shares,
pay to Shareholder an amount in cash equal to the Shortfall Amount by wire
transfer of immediately available funds.
(m) The Shareholder agrees that he will not engage in a Disposition within
the ten Trading Days immediately prior to the one year anniversary of the
Closing Date. Shareholder also acknowledges and agrees that he may be requested
not to make a Disposition for a period of time by DI because of requirements by
underwriters of DI securities or as a requirement of the Securities Act. It is
understood and agreed that the period shall not exceed 90 days.
3. Representation of Shareholder. Shareholder hereby represents and
warrants to Buyer and DI that Shareholder has no current plan or intention to
engage in a sale, transfer, exchange, distribution, pledge or other disposition,
or otherwise reduce his risk of ownership of, more than forty-five percent of
the DI Stock he receives from the Company.
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4. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given (and shall be deemed to have
been duly received if so given) if personally delivered or sent by registered or
certified mail, postage prepaid, addressed to the respective parties as follows:
If to Buyer or DI:
DI Industries, Inc.
000 Xxxxxxx Xxxxxx Xxxxx
000 Xxxxx Xxxx
Xxxxxxx, Xxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx
with a copy to:
Gardere Xxxxx Xxxxxx & Xxxxx, L.L.P.
000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attn: Xxxxx X. Xxxxxx
If to the Shareholder:
F.C. West
0000 X. Xxxx
Xxxxx, Xxxxx 00000
or to such other address as a party may have furnished to the other parties in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
5. Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall continue in full force and effect and shall
in no way be affected, impaired or invalidated.
6. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be an original, but all of which together shall constitute
one and the same agreement.
7. Captions. The section headings herein are for convenience only and
shall not affect the construction hereof.
8. Assignability. Shareholder may not assign any of his rights or
obligations hereunder to any other person without the prior written consent of
DI. DI and Buyer may not assign any of their respective rights or obligations
hereunder to any other person without the prior written consent of Shareholder,
except that no such consent will be required in connection with an assignment by
Buyer or DI to an affiliate.
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9. Entire Agreement. This Agreement (including the Exhibits and Schedules
hereto) constitutes the entire agreement between the parties hereto and
supersedes all prior agreements and understandings, oral and written, between
the parties hereto with respect to the subject matter hereof.
10. Amendment; Waiver. This Agreement may be amended, supplemented or
otherwise modified only by a written instrument executed by the parties hereto.
No waiver by any party of any of the provisions hereof shall be effective unless
explicitly set forth in writing and executed by the party so waiving. Except as
provided in the preceding sentence, no action taken pursuant to this Agreement,
including any investigation by or on behalf of any party, shall be deemed to
constitute a waiver by the party taking such action of compliance with any
representations, warranties, covenants, or agreements contained herein, and in
any documents delivered or to be delivered pursuant to this Agreement and in
connection with the Closing hereunder. The waiver by any party hereto of a
breach of any provision of this Agreement shall not operate or be construed as a
waiver of any subsequent breach.
11. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Texas.
12. No Third Party Beneficiaries. This Agreement is solely for the
benefit of the parties hereto and nothing contained herein should be deemed to
confer upon any third parties any remedy, claim, liability reimbursement, claim
of action or other right in excess of those existing without reference to this
Agreement.
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IN WITNESS WHEREOF, this Agreement has been executed by each of the parties
hereto as of the date first above written.
DRILLERS, INC.
By:
--------------------------------
Name:
------------------------------
Title:
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DI INDUSTRIES, INC.
By:
--------------------------------
Name:
-----------------------------
Title:
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SHAREHOLDER
-----------------------------------
F.C. West
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