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. 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 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 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:
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. 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: XXXX XXXXXXX
Name: Xxxx Xxxxxxx
Title: Chief Executive Officer
DLB OIL & GAS, INC.,
an Oklahoma corporation
By: XXXX XXXXXXX
Name: Xxxx Xxxxxxx
Title: Chief Executive Officer
STOCKHOLDERS:
HBH ENTERPRISES ALP
By: HBH HOLDING CORPORATION,
General Partner
By: XXXXXXX X. XXXXXX, XX.
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: President
XXXXXXX X. XXXXXX, XX.
Xxxxxxx X. Xxxxxx, Xx.
XXXXXXX X. XXXXXX
Xxxxxxx X. Xxxxxx
XXXXXXX X. XXXXXX
Xxxxxxx X. Xxxxxx
XXXXXX CHILDREN'S TRUSTS
By: XXXX X. XXXXXX
Name: Xxxx X. Xxxxxx
Title: Trustee
XXXXX X. XXXXXXX III
Xxxxx X. Xxxxxxx III, Custodian
XXXXX X. XXXXXXX III REVOCABLE TRUST
By: XXXXX X. XXXXXXX III
Name: Xxxxx X. Xxxxxxx III
Title: Trustee
EGEAN FINANCIERA CORPORATION
By: A.C. KEDROS
Name: Alexandros C. Kedros
Title: Authorized Signatory
CIRCLE SHIPPING COMPANY
By: XXXXXXX XXXXXXXXXX
Name: Xxxxxxx Xxxxxxxxxx
Title: Secretary
SIERRA FINANCIERA CORPORATION
By: XXXXXXX XXXXXXXXXX
Name: Xxxxxxx Xxxxxxxxxx
Title: Secretary
XXXXXXX XXXXXXXXXX
Xxxxxxx Xxxxxxxxxx
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
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
