1
STOCKHOLDER TENDER AGREEMENT
THIS STOCKHOLDER TENDER AGREEMENT (this "Agreement"), dated the 6th
day of January, 1997, by and among Acquisition Drilling, Inc. , a Delaware
corporation ("ADI"), DLB Oil & Gas, Inc., an Oklahoma corporation ("DLB"), and
the stockholders of Bonray Drilling Corporation, a Delaware corporation (the
"Company"), listed on Exhibit A attached hereto (each a "Stockholder" and
collectively the "Stockholders").
RECITALS
Simultaneous with the execution and delivery of this Agreement, ADI
and its parent corporation, DLB, are entering into an Agreement and Plan of
Merger (as amended from time to time, the "Merger Agreement") with the Company,
pursuant to which ADI will commence a tender offer (the "Offer") to acquire any
and all shares of common stock, par value $1.00 per share (the "Common Stock"),
of the Company.
As an inducement to DLB and ADI to enter into and perform the Merger
Agreement, the Stockholders have agreed to enter into this Agreement, and DLB
and ADI are entering into the Merger Agreement in reliance upon the
Stockholders' representations, warranties, covenants and agreements contained
herein.
NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants and promises set forth below, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties agree as follows:
1. Tender of Stock. Each Stockholder hereby agrees to tender to
ADI pursuant to the Offer all shares of Common Stock of the Company now owned
or hereafter acquired by the Stockholder prior to the Expiration Date (as
defined in the Merger Agreement) (all such shares being defined as the
"Shares") and not withdraw any such Shares from the Offer except in accordance
with the terms and provisions of this Agreement. Each Stockholder agrees to so
tender all Shares presently owned by such Stockholder ("Existing Shares")
within 10 business days of commencement of the Offer, and agrees to so tender
any Shares hereafter acquired by such Stockholder within 2 business days of
such acquisition but in any event prior to the Expiration Date. Attached as
Schedule 1 to this Agreement is an accurate and complete list of all shares of
Common Stock beneficially owned by each Stockholder and a list of each option
or other right of any Stockholder to acquire shares of Common Stock.
2. Representations and Warranties of the Stockholders. Each
Stockholder hereby represents and warrants to ADI and DLB as follows:
2.1. Binding Agreement. This Agreement constitutes the
legal, valid, and binding agreement of the Shareholder, enforceable against the
Stockholder in accordance with its terms, except to the extent that
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other laws affecting the enforcement of creditors' rights
generally and by principles of equity regarding the availability of remedies.
2
2.2. Shares. Set forth opposite such Stockholder's name
on Schedule 1 to this Agreement is the total number of Existing Shares and
options or other rights to acquire shares of Common Stock owned by the
Stockholder on the date of this Agreement. The Stockholder has all required
authority and has taken all necessary action to permit the Stockholder at all
times from the date of this Agreement to deliver and sell the Shares.
2.3. No Conflicts. Neither the execution and delivery of
this Agreement nor the consummation of the transactions contemplated by this
Agreement will violate or result in any violation of or be in conflict with, or
constitute a default under, the terms of any statute, regulation, agreement,
instrument, judgment, decree, rule, or order applicable to the Stockholder.
2.4. No Approvals or Notices Required. The execution,
delivery, and performance of this Agreement by the Stockholder and the
consummation by the Stockholder of the transactions contemplated by this
Agreement will not violate (with or without the giving of notice or the lapse
of time or both) or require any consent, approval, filing, or notice by the
Stockholder under any provision of law applicable to the Stockholder except for
any filings required by the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended (the "HSR Act"), if applicable, and filings on Schedule 13D
under the Securities Exchange Act of 1934, as amended (the "Exchange Act").
2.5. Title. Upon acceptance for purchase and payment by
ADI pursuant to the Offer, ADI will acquire good title to the Shares, free and
clear of any claims, liens, charges, encumbrances, security interests, options,
warrants, rights to purchase, voting agreements, voting trusts, and charges of
any nature whatsoever other than restrictions on transfer under applicable
federal and state securities laws. On the date of this Agreement the
Stockholder has (and the Stockholder will have at all times up to the purchase
by ADI of the Existing Shares) good title to the Existing Shares, free and
clear of all claims, liens, charges, encumbrances, security interests, options,
warrants, rights to purchase, voting agreements, voting trusts and charges
other than restrictions on transfer under applicable federal and state
securities laws.
2.6. Finder's Fees. No person is, or will be, entitled to
any commission or finder's fees from the Stockholder in connection with this
Agreement or the transactions contemplated hereby.
3. Representations and Warranties of ADI and DLB. ADI and DLB
hereby represent and warrant to the Stockholders as follows:
3.1. Due Authorization. This Agreement has been duly
authorized by all necessary action on the part of ADI and DLB and has been duly
executed and delivered by ADI and DLB.
3.2. No Conflicts. Neither the execution and delivery of
this Agreement nor the consummation of the transactions contemplated by this
Agreement will violate or result in any violation of or be in conflict with or
constitute a default under any terms of the Certificates
2
3
of Incorporation or Bylaws of ADI or DLB or any statute, regulation, agreement,
instrument, judgment, decree, rule, or order applicable to ADI or DLB.
3.3. No Approvals or Notices Required. The execution,
delivery, and performance of this Agreement by ADI and DLB and the consummation
by ADI and DLB of the transactions contemplated by this Agreement will not
violate (with or without the giving of notice or the lapse of time or both) or
require any consent, approval, filing or notice by ADI or DLB under any
provision of law applicable to ADI or DLB except for filings required by the
HSR Act, if applicable, and filings on Schedules 13D and 14D-1 of the Exchange
Act.
4. Other Agreements of the Stockholders.
4.1. Proxy. Each Stockholder hereby irrevocably appoints
(i) Xxxx Xxxxxxx and Xxxx Xxxxxxx and each of them, with full power of
substitution and resubstitution (or any other designees of ADI), as proxies for
the Stockholder to vote, all shares of Common Stock that the Stockholder is
entitled to vote (together with any other shares of Common Stock that the
Stockholder may become entitled to vote), for and in the name, place, and stead
of the Stockholder at any meeting of the holders of shares of Common Stock or
any adjournments or postponements thereof or pursuant to any consent in lieu of
a meeting, or otherwise, with respect only to the approval of the Merger
Agreement, the transactions contemplated by the Merger Agreement, any matters
related to or in connection with the merger contemplated in the Merger
Agreement (the "Merger"), and any corporate action the consummation of which
would violate, frustrate the purposes of, prevent, or delay the consummation of
the transactions contemplated by the Merger Agreement (including, without
limitation, any proposal to amend the Certificate of Incorporation or Bylaws of
the Company or approve any merger, consolidation, sale or purchase of any
assets, issuance of Common Stock or any other equity security of the Company
(or a security convertible into an equity security of the Company),
reorganization, recapitalization, liquidation, winding up of or by the Company,
or any similar transaction) and (ii) Xxxxxxx X. Xxxxxx, Xx. and Xxxxxxx X.
Xxxxxx and each of them as his true and lawful attorneys-in-fact and agents and
in his name, place and xxxxx, to agree to and sign any and all amendments to
this Agreement and to receive any and all notices to the Stockholder pursuant
to this Agreement, granting to each said attorneys-in-fact and agents full
power and authority to do and perform each and every act and thing requisite
and necessary to be done in connection therewith, as fully to all intents and
purposes as he might or could do in person. Each Stockholder agrees that the
foregoing proxy is coupled with an interest.
4.2. Exclusivity Covenants. From the date of this
Agreement, each Stockholder, in his capacity as a stockholder and not in his
capacity as a director of the Company, covenants and agrees to negotiate
exclusively with DLB and ADI with regard to the acquisition of the Company and
will not directly or indirectly: (i) solicit any other buyers for all or any
part of the capital stock or assets of the Company or any of its subsidiaries;
(ii) encourage any third parties to bid for any of the assets of the Company or
any of its subsidiaries or to purchase shares of its capital stock, or
participate in any negotiations or discussions with any such third parties with
respect to such matters; (iii) provide business or financial information (not
otherwise publicly available) concerning the Company or any of its subsidiaries
to any third parties (except as required for the making of necessary regulatory
filings or in any judicial or administrative
3
4
proceeding); (iv) purchase or otherwise acquire shares of or any beneficial
interest in any of the capital stock of the Company except upon exercise of
options listed on Schedule 1; (v) make, or assist or cooperate with anyone else
to make, any proposal to purchase all or any part of the assets or capital
stock of the Company; or (vi) enter into any arrangements by himself or itself
or with others to directly or indirectly acquire or obtain control of the
Company. The Stockholder will immediately notify ADI if he, she or it becomes
aware of any efforts by any person or group, directly or indirectly in any
manner whatsoever, to acquire or obtain control of the Company. The
Stockholder will direct his, her and its financial and other advisers and
representatives to comply with each of the foregoing covenants.
4.3. Notification of Record Date. At any time from and
after the date of this Agreement until the time that ADI purchases Shares
pursuant to the Offer, each Stockholder will give ADI fifteen (15) days' prior
written notice of any record date for determining the holders of record of the
Common Stock entitled to vote on any matter, to receive any dividend or
distribution, or to participate in any rights offering or other matters, or to
receive any other benefit or right with respect to the Common Stock.
5. Termination. This Agreement (other than the provisions of
Section 6.10) shall terminate on the earliest of (a) the date on which ADI
accepts for payment the Shares tendered in the Offer, so long as the Shares are
so tendered and not withdrawn; (b) the termination of the Merger Agreement by
the Company pursuant to Section 9.4(a) or (c) of the Merger Agreement; or (c)
the termination of the Offer by ADI without purchasing any Shares pursuant
thereto.
6. Miscellaneous.
6.1. Assignment. This Agreement is not assignable, by
operation of law or otherwise, by any party except pursuant to the laws of
descent and distribution (except that any such transferee will be bound by the
terms of this Agreement) and except that ADI may assign this Agreement and its
rights under this Agreement to a subsidiary of DLB.
6.2. Amendments. This Agreement may not be modified,
amended, altered, or supplemented, except upon the execution and delivery of a
written agreement executed by each party.
6.3. Notices. All notices, requests, claims, demands, and
other communications under this Agreement will be in writing and will be given
(and will be deemed to have been duly received when so given) by delivery, by
cable, facsimile, telegram or telex, or by registered mail, postage prepaid,
return receipt requested, to the respective parties as follows:
4
5
If to ADI or DLB:
c/o DLB Oil & Gas, Inc.
0000 X.X. Xxxxxxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
General Counsel
With copies to:
Xxxxx X. Xxxxx, XX, Esq.
Fellers, Snider, Xxxxxxxxxxx,
Xxxxxx & Xxxxxxx
First National Center
000 Xxxxx Xxxxxxxx, Xxxxx 0000
Xxxxxxxx Xxxx, XX 00000-0000
If to the Stockholders:
c/o Xxxxxxx X. Xxxxxx, Xx.
Bonray Drilling Corporation
0000 X.X. 00xx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
With copies to:
Xxxx X. Xxxxxx, Esq.
McAfee & Xxxx
Two Leadership Square, 10th Floor
000 Xxxxx Xxxxxxxx
Xxxxxxxx Xxxx, XX 00000
6.4. Governing Law. This Agreement will be governed by
and construed in accordance with the substantive law of the State of Delaware
without giving effect to the principles of conflicts of law.
6.5. Counterparts. This Agreement may be executed in
several counterparts, each of which will be an original, but all of which
together will constitute one and the same agreement.
6.6. Effect of Headings. The section headings in this
Agreement are for convenience only and will not affect the construction of this
Agreement.
6.7. Parties in Interest. This Agreement will inure to
the benefit of and be binding upon the parties to this Agreement and their
respective permitted successors and assigns.
5
6
Nothing in this Agreement, express or implied, is intended to confer on any
person other than the parties to this Agreement and their respective permitted
successors and assigns, any rights or remedies under or by reason of this
Agreement.
6.8. Severability. If any term, provision, covenant, or
restriction, or any portion thereof, contained in this Agreement is held by a
court of competent jurisdictions to be invalid, void, voidable, or
unenforceable, such term, provision, covenant, restriction, or portion will be
curtailed whether as to time, area, or otherwise, to the minimum extent
required by applicable law and the remaining terms, provisions, covenants, and
restrictions will remain in full force and effect and will in no way be
affected, impaired, or invalidated.
6.9. Certain Definitions; Interpretation. The word
"person" when used in this Agreement will be broadly construed to include any
individual, company, corporation, partnership, joint venture, trust, firm, or
other entity, and the word "affiliate" has the meaning given in Rule 144(a)(1)
under the Securities Act.
6.10. Expenses. No party to this Agreement will be
obligated to pay the expenses of any other party in connection with the
transactions contemplated by this Agreement, including, without limitations,
the fees and expenses of its counsel and other advisers.
6.11. DLB Guaranty. DLB irrevocably guarantees the
performance by ADI of all of its obligations under this Agreement.
6.12. Facsimile Signature. After execution of this
Agreement, the signature pages may be transmitted to the other parties via
facsimile so long as the original signature pages are delivered the following
business day via overnight delivery service.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Stockholder Purchase Agreement the date first above written.
ACQUISITION DRILLING, INC.,
a Delaware corporation
By: /S/Xxxx Xxxxxxx
-------------------------------------------
Name: Xxxx Xxxxxxx
Title: Chief Executive Officer
DLB OIL & GAS, INC.,
an Oklahoma corporation
By: /S/Xxxx Xxxxxxx
-------------------------------------------
Name: Xxxx Xxxxxxx
Title: Chief Executive Officer
6
7
STOCKHOLDERS:
HBH ENTERPRISES ALP
By: HBH HOLDING CORPORATION,
General Partner
By: /S/Xxxxxxx X. Xxxxxx, Xx.
----------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: President
/S/Xxxxxxx X. Xxxxxx, Xx.
----------------------------------------------
Xxxxxxx X. Xxxxxx, Xx.
/S/Xxxxxxx X. Xxxxxx
----------------------------------------------
Xxxxxxx X. Xxxxxx
/S/Xxxxxxx X. Xxxxxx
----------------------------------------------
Xxxxxxx X. Xxxxxx
XXXXXX CHILDREN'S TRUSTS
By: /S/Xxxx X. Xxxxxx, Trustee
-------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Trustee
/S/Xxxxx X. Xxxxxxx III
----------------------------------------------
Xxxxx X. Xxxxxxx III, Custodian
XXXXX X. XXXXXXX III REVOCABLE TRUST
By: /S/Xxxxx X. Xxxxxxx III
-------------------------------------------
Name: Xxxxx X. Xxxxxxx III
Title: Trustee
7
8
EGEAN FINANCIERA CORPORATION
By: /S/A. Kedros
-------------------------------------------
Name: Alexandros C. Kedros
Title: Authorized Signatory
CIRCLE SHIPPING COMPANY
By: /S/Xxxxxxx Xxxxxxxxxx
-------------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Secretary
SIERRA FINANCIERA CORPORATION
By: /S/Xxxxxxx Xxxxxxxxxx
-------------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Secretary
/S/Xxxxxxx Xxxxxxxxxx
----------------------------------------------
Xxxxxxx Xxxxxxxxxx
8
9
EXHIBIT "A"
HBH Enterprises ALP
Xxxxxx Children's Trusts
Xxxxxxx X. Xxxxxx, Xx.
Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Egean Financiera Corporation
Circle Shipping Company
Sierra Financiera Corporation
X. Xxxxxxxxxx
Xxxxx X. Xxxxxxx III, Custodian
Xxxxx X. Xxxxxxx III Revocable Trust
10
Bonray Drilling/DLB
SCHEDULE 1
TO
STOCKHOLDER TENDER AGREEMENT
HBH Enterprises ALP 148,850
Xxxxxx Children's Trusts 120
Xxxxxxx X. Xxxxxx, Xx. 15,170
Xxxxxxx X. Xxxxxx 960
Xxxxxxx X. Xxxxxx 120
Egean Financiera Corporation 29,819
Circle Shipping Company 8,570
Sierra Financiera Corporation 7,915
X. Xxxxxxxxxx 6,741
Xxxxx X. Xxxxxxx III, Custodian 10
Xxxxx X. Xxxxxxx III Revocable Trust 11,440
-------
TOTAL 229,715
=======
