EXHIBIT 10.22
SHAREHOLDER'S AGREEMENT
This Shareholder's Agreement (this "Agreement"), dated January ___, 1997,
is among Drillers, Inc., a Texas corporation ("Buyer"), DI Industries, Inc., a
Texas corporation ("DI") and __________________ ("Shareholder").
WHEREAS, Buyer and Xxxxxxxx Drilling Company, (the "Company"), a Texas
corporation, are parties to an Asset Purchase Agreement dated December __, 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;
(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) Notwithstanding any other provisions to the contrary in this
Agreement, the Shareholder's liability under this Section 1 shall be limited to
the product of (i) the shareholder's percentage ownership in Xxxxxxxx and (ii)
$10,000,000 cash or, if Xxxxxxxx so elects, shares of DI stock with a total
value of $10,000,000 at the last reported sale price of DI stock on the American
Stock Exchange for the ten trading days prior to the date of payment of the
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 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 Measurement Period the next
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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. NON-COMPETITION. [XX. XXXXXXXX ONLY] In order to allow Buyer and DI to
realize the full benefit of their bargain in connection with the purchase of the
Assets, Shareholder will not, at any time for a period of three years following
the Closing Date, directly or indirectly, acting alone or as a member of a
partnership or as a holder of in excess of 5% of any security of any class, or
as a consultant to or representative of, any corporation or other business
entity,
a. engage in any business in competition with the Business as
conducted by the Company at the date hereof in those geographic areas in
which such Business is conducted or has been conducted within one year
prior to the date of this Agreement; or
b. request any present or future customer or supplier of the Company
or of the Business as conducted by Buyer to curtail or cancel its business
with Buyer; or
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c. unless otherwise required by law, disclose to any person, firm or
corporation any details of organization or business affairs of the Company
or the Business, any names of past or present customers of the Company or
any other non-public information concerning the Business, the Company or
the Assets; or
d. induce or attempt to influence any employee of Buyer assigned to
the conduct of the Business to terminate his or her employment.
The Shareholder acknowledges that in the event the scope of the covenants set
forth in this Section 3 is deemed to be too broad in any proceeding, the court
may reduce such scope to that which it deems reasonable under the circumstances.
The parties hereto agree and acknowledge that Buyer and DI would not have any
adequate remedy at law for the breach or threatened breach by the Shareholder or
any of his affiliates of the covenants and agreements set forth in this Section
3 and, accordingly, the Company further agrees that Buyer or DI may, in addition
to the other remedies which may be available to them hereunder, file suit in
equity to enjoin the Shareholder from such breach or threatened breach and
consent to the issuance of injunctive relief hereunder. Shareholder understands
and agrees that the act of Buyer and DI in entering into this Agreement and the
Asset Purchase Agreement, and Buyer's and DI's covenants and payments hereunder,
shall and do constitute sufficient consideration for Shareholder to agree not to
compete against Buyer and DI as set out in this Section 3. Notwithstanding the
foregoing, nothing herein shall restrain Shareholder from contracting for the
services of third party drilling contractors for the drilling of oil and gas
xxxxx or from engaging in and exploring for and developing oil and gas
properties for the account of the Shareholder or any of his affiliates.
4. NOMINATION TO BOARD. [XX. XXXXXXXX ONLY] DI agrees that it shall
nominate Shareholder to serve on its Board of Directors as soon as practicable
after the date hereof.
5. 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.
6. 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
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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:
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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.
7. 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.
8. 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.
9. CAPTIONS. The section headings herein are for convenience only and
shall not affect the construction hereof.
10. 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.
11. 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.
12. 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
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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.
13. APPLICABLE LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Texas.
14. 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.
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:
DI INDUSTRIES, INC.
By:
Name:
Title:
SHAREHOLDER
--------------------------------------
Printed Name:_________________________
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ADDITIONAL SHARE ISSUANCE
CASE I
ASSUME: a. Distributed Shares 1,000,000
b. Number of Shares 200,000
Sold by Public Disposition
Prior to Anniversary Date
c. Shares Disposed of Privately 0
d. Average DI Stock Price of $1.50/share
Shares Sold
e. Average DI Stock Price $1.75/share
at Anniversary Date
AS = SA
--
AP
Where:
AS = Additional Shares
AP = Average DI Stock Price
SA = Shortfall Amount determined as follows:
SA = 1/2 [(2.00 x 1,000,000) - (200,000 x 1.50 + 1.75 x 800,000)]
SA = 1/2 [(2,000,000) - (300,000 + 1,400,000)]
SA = 1/2 [(2,000,000) - (1,700,000)]
SA = 150,000
AS = 150,000 = 85,714
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1.75
ADDITIONAL SHARE ISSUANCE
CASE I
ASSUME: a. Distributed Shares 1,000,000
b. Number of Shares 0
Sold by Public Disposition
Prior to Anniversary Date
c. Shares Disposed of Privately 0
d. Average DI Stock Price of N/A
Shares Sold
e. Average DI Stock Price $1.75/share
at Anniversary Date
AS = SA
--
AP
Where:
AS = Additional Shares
AP = Average DI Stock Price
SA = Shortfall Amount determined as follows:
SA = 1/2 [(2.00 x 1,000,000) - (1.75 x 1,000,000)]
SA = 1/2 [(2,000,000) - (1,750,000)]
SA = 1/2 [(2,000,000) - (1,750,000)]
SA = 125,000
AS = 125,000 = 71,429
-------
1.75
