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EXHIBIT 9.1
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SECOND AMENDED AND RESTATED
STOCKHOLDERS AND VOTING AGREEMENT
BY AND AMONG
BAYARD DRILLING TECHNOLOGIES, INC.
AND
THE STOCKHOLDERS
THAT ARE SIGNATORIES HERETO
OCTOBER 16, 1997
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 2 -
ARTICLE II
AMENDED AND RESTATED AGREEMENT
SECTION 2.1 Effectiveness; Amended and Restated Agreement . . . . . . . . . . . . . . . . . . . . . . . . - 9 -
SECTION 2.2 Continuing and Departing Stockholder Parties . . . . . . . . . . . . . . . . . . . . . . . . - 9 -
ARTICLE III
CORPORATE GOVERNANCE
SECTION 3.1 Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 10 -
SECTION 3.2 Energy Spectrum Non-Voting Observer . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 12 -
SECTION 3.3 Representatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 12 -
SECTION 3.4 Directors' and Officers' Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . - 13 -
SECTION 3.5 Contractual Management Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 13 -
SECTION 3.6 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 14 -
SECTION 3.7 Certain Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 14 -
SECTION 3.8 Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 14 -
SECTION 3.9 Designation of DLB Director Prior to Initial Public Offering . . . . . . . . . . . . . . . - 14 -
ARTICLE IV
RESTRICTIONS ON TRANSFER
SECTION 4.1 Restrictions on Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 15 -
SECTION 4.2 Holdback Agreements; Adjustments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 16 -
SECTION 4.3 Pledge of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 17 -
SECTION 4.4 Securities Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 18 -
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ARTICLE V
COVENANTS
SECTION 5.1 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 18 -
SECTION 5.2 Cooperation with Financings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 19 -
SECTION 5.3 No Conflicting Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 19 -
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.1 Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 19 -
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 General Legend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 20 -
SECTION 7.2 DLB Distribution Legends. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 22 -
SECTION 7.3 Duration of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 23 -
SECTION 7.4 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 23 -
SECTION 7.5 Amendment and Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 23 -
SECTION 7.6 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 23 -
SECTION 7.7 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 24 -
SECTION 7.8 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 24 -
SECTION 7.9 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 24 -
SECTION 7.10 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 24 -
SECTION 7.11 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 24 -
SECTION 7.12 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 25 -
SECTION 7.13 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 25 -
SECTION 7.14 Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 25 -
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SECOND AMENDED AND RESTATED
STOCKHOLDERS AND VOTING AGREEMENT
BAYARD DRILLING TECHNOLOGIES, INC.
This SECOND AMENDED AND RESTATED STOCKHOLDERS AND VOTING
AGREEMENT (this "Agreement") is made as of October 16, 1997, by and among
Bayard Drilling Technologies, Inc., a Delaware corporation (the "Company"), the
stockholders of the Company identified on the signature pages attached hereto
as the "Continuing Stockholder Parties" (the "Continuing Stockholder Parties")
and the stockholders of the Company identified on the signature pages attached
hereto as the "Departing Stockholder Parties" (the "Departing Stockholder
Parties").
WITNESSETH:
WHEREAS, as of December 10, 1996, the Company and certain of
its stockholders entered into that certain Stockholders and Voting Agreement
(the "Original Stockholders and Voting Agreement"), pursuant to which the
parties thereto set forth certain agreements by and among the stockholders of
the Company party thereto and the Company with respect to (i) the corporate
governance of the Company, (ii) transfer restrictions on shares of Common Stock
(as herein defined) and Common Stock Equivalents (as herein defined) and (iii)
other customary terms and conditions;
WHEREAS, as of April 30, 1997, the Company and certain of its
stockholders entered into that certain Amended and Restated Stockholders and
Voting Agreement (as amended, the "First Amended and Restated Stockholders and
Voting Agreement"), pursuant to which the parties thereto amended and restated
the Original Stockholders and Voting Agreement in its entirety;
WHEREAS, DLB Oil and Gas, Inc. ("DLB"), the Company, Bonray
Acquisition Corp. ("Newco") and Bonray Drilling Corporation ("Bonray") have
entered into that certain Agreement and Plan of Merger, dated as of October 9,
1997 (the "Bonray Merger Agreement");
WHEREAS, upon the terms and conditions set forth in the Merger
Agreement, (i) Newco will be merged with and into Bonray and (ii) the
outstanding capital stock of Bonray will be converted into an aggregate of
3,015,000 shares (the "Acquired
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Shares") of Common Stock, all of which will initially be held by DLB (as the
former holder of all of the capital stock of Bonray);
WHEREAS, immediately after the consummation of the
transactions contemplated by the Merger Agreement, DLB intends to transfer
60,000 of the Acquired Shares to ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities
Corporation ("DLJ") such that after such transfer to DLJ, DLB will hold an
aggregate of 2,955,000 shares (the "DLB Shares") of Common Stock; and
WHEREAS, the Company and the other parties hereto desire to
amend and restate the First Amended and Restated Stockholders and Voting
Agreement in its entirety in order to provide, among other things, that (i) the
Departing Stockholder Parties will not be parties to this Agreement and will
have no rights and obligations hereunder and (ii) DLB and DLJ will become, and
the other Continuing Stockholder Parties will continue to be, parties to this
Agreement and will have the rights and obligations set forth herein;
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements set forth herein, the mutual benefits to be
gained by the performance thereof and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged and accepted, the
Company and the Continuing Stockholder Parties agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. As used herein, the following
terms shall have the following meanings:
"Accredited Investor" means a Person that qualifies as an
"accredited investor" as that term is defined in Rule 501 of
Regulation D promulgated under the Securities Act.
"Acquired Shares" has the meaning set forth in the Recitals
hereto.
"Affiliate" means, with respect to any Person, any other
Person directly or indirectly Controlling or Controlled by, or under
direct or indirect common Control with, such Person.
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"Agreement" has the meaning set forth in the Preamble hereto.
"AnSon" means AnSon Partners Limited Partnership, an Oklahoma
limited partnership.
"AnSon Designee" has the meaning set forth in Section
3.1(b)(ii) hereof.
"AnSon Director" has the meaning set forth in Section
3.1(b)(iv) hereof.
"AnSon Group" means (i) AnSon, (ii) ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III and
(iii) any Affiliate of AnSon that executes a counterpart to this
Agreement, agreeing to be bound by the terms hereof as a "Continuing
Stockholder Party."
"Bonray" has the meaning set forth in the Recitals hereto.
"Bonray Merger Agreement" has the meaning set forth in the
Recitals hereto.
"Board of Directors" has the meaning set forth in Section
3.1(a) hereof.
"Business Day" means any day other than a Saturday, Sunday or
other day on which national banks are authorized or required by law to
be closed in Dallas, Texas.
"Bylaws" means the Bylaws of the Company, as in effect on the
date hereof and as the same may be amended from time to time
hereafter.
"Capital Stock" means all shares, interests, participations or
other equivalents of capital stock of a corporation, however
designated, and any warrants, options or other rights to purchase or
acquire any such capital stock and any securities convertible into or
exchangeable or exercisable for any such capital stock.
"Certificate" means the Certificate of Incorporation of the
Company, as in effect on the date hereof and as the same may be
amended from time to time hereafter.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the Common Stock, par value $.01 per
share, of the Company and any equity securities issued or issuable
with respect to the
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Common Stock in connection with a combination or division of shares,
recapitalization, merger, consolidation or other reorganization.
"Common Stock Equivalents" means securities convertible into,
or exchangeable or exercisable for, shares of Common Stock, including
without limitation the Series B Warrant held by Energy Spectrum, but
not including the Subordinated Notes unless and until they are
converted into Common Stock.
"Company" has the meaning set forth in the Preamble hereto.
"Competitor" means any Person which competes directly or
indirectly, in any material respect with the Company or any of its
Subsidiaries, including, without limitation, any Person that does so
through providing contract drilling services (whether on land or
offshore, in the United States or internationally) or being engaged in
any other manner of oil field services.
"Continuing Stockholder Parties" has the meaning set forth in
the Preamble hereto.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies
of a Person, whether through the ownership of voting securities, by
contract or otherwise.
"Departing Stockholder Parties" has the meaning set forth in
the Preamble hereto.
"Designees" has the meaning set forth in Section 3.1(b)(iv)
hereof.
"Distributing Party" means DLB or, if applicable, the DLB
Successor.
"DLB" has the meaning set forth in the Recitals hereto.
"DLB Designator" means a member of the DLB Group who holds, or
is designated by the holders of, 51% or more of the DLB Shares held by
the DLB Group.
"DLB Designee" has the meaning set forth in Section
3.1(b)(iii) hereof.
"DLB Director" has the meaning set forth in Section 3.1(b)(iv)
hereof.
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"DLB Distribution" means (i) the distribution by the
Distributing Party of the DLB Shares held by it to the DLB
Stockholders (whether in the form of a dividend payable on shares of
capital stock of the Distributing Party or in any other form not
involving the payment of any cash consideration or any other
consideration whatsoever, other than (if applicable) the surrender,
exchange or cancellation of shares of capital stock of the
Distributing Party) or (ii) any other transaction resulting directly
or indirectly in the distribution or transfer of the DLB Shares to the
DLB Stockholders which has been approved by the Company, acting
through its Board of Directors (it being understood that the Company
shall consider in good faith the approval of any distribution or
transfer referred to in clause (ii) above and the Company, DLB and the
Distributing Party shall endeavor in good faith to structure such
distribution or transfer in such a way as to meet the business
objectives of each of the parties).
"DLB Group" means (i) DLB, (ii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, (iii) ▇▇▇▇
▇▇▇▇▇▇▇, (iv) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and (v) any other Person that
acquires 51% or more of the DLB Shares as permitted under the terms of
this Agreement, so long as such Person identified in any of clauses
(i) through (iv) executes a Supplemental Agreement as contemplated by
Section 4.1(a).
"DLB Stockholders" means (i) if the Distributing Party is DLB,
the stockholders of DLB or (ii) if the Distributing Party is the DLB
Successor, the Persons who were stockholders of DLB immediately prior
to the merger, transfer of assets or other transaction in which the
DLB Successor acquired 51% or more of the DLB Shares.
"DLB Shares" has the meaning set forth in the Recitals hereto.
"DLB Successor" means any Person who is a successor to DLB
(whether as result of a merger, transfer of assets or any other
transaction) and, as such, acquires 51% or more of the DLB Shares, so
long as (i) the only Persons who have any right to receive a
distribution of such DLB Shares from such successor or have any other
beneficial interest in such shares are the DLB Stockholders and (ii)
such successor executes and delivers a Supplemental Agreement as
contemplated by Section 4.1(a).
"DLJ" has the meaning set forth in the Recitals hereto.
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"Energy Spectrum" means Energy Spectrum Partners LP, a
Delaware limited partnership.
"Energy Spectrum Designee" has the meaning set forth in
Section 3.1(b)(i) hereof.
"Energy Spectrum Director" has the meaning set forth in
Section 3.1(b)(iv) hereof.
"Energy Spectrum Non-Voting Observer" has the meaning set
forth in Section 3.2 hereof.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and the regulations promulgated thereunder.
"First Amended and Restated Stockholders Agreement" has the
meaning set forth in the Recitals hereto.
"Indebtedness" means, with respect to any Person, all
obligations of such Person for borrowed money or evidenced by bonds,
debentures, notes or similar instruments.
"Initial Public Offering" means the initial underwritten
public offering of shares of Common Stock registered under the
Securities Act pursuant to a Registration Statement on Form S-1
(Commission File No. 333- 34451) of the Company.
"Initial Public Offering Effective Date" means the date of
effectiveness of the Initial Public Offering.
"May Financing" means the purchase by Energy Spectrum and
Chesapeake Energy Corporation, an Oklahoma corporation ("Chesapeake"),
of shares of Common Stock, certain subordinated debt and certain
warrants of the Company, all pursuant to that certain Securities
Purchase Agreement, dated as of April 30, 1997, by and among the
Company, Energy Spectrum and Chesapeake.
"Newco" has the meaning set forth in the Recitals hereto.
"Original Stockholders and Voting Agreement" has the meaning
set forth in the Recitals hereto.
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"Person" means any individual, corporation, limited liability
company, limited or general partnership, joint venture, association,
joint-stock company, trust, unincorporated organization or government
or any agency or political subdivisions thereof.
"Qualified Public Sale" means, with respect to shares of
Stock, a sale of such shares (i) in an underwritten public offering
registered pursuant to the Securities Act or (ii) pursuant to Rule 144
under the Securities Act in a "brokers' transaction" (as defined in
Rule 144) in which no solicitation or direct contact with any specific
buyer shall have occurred.
"Registration Rights Agreements" means (i) that certain Second
Amended and Restated Registration Rights Agreement dated as of October
16, 1997, by and among the Company and the stockholders of the
Company that are signatories thereto and (ii) that certain
Registration Rights Agreement, dated as of October 16, 1997, by and
among the Company, DLB and DLJ, as applicable, as both such agreements
may be amended, modified, replaced or superseded from time to time
hereafter.
"Restricted Shares" has the meaning set forth in Section 4.4
hereof.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Exchange Act" means the Securities Exchange Act of
1934, as amended.
"Series B Warrants" means the Series B Warrants, exercisable
for shares of Common Stock at an exercise price of $7.50 per share,
issued by the Company in connection with the May Financing.
"Stock" means any shares of Common Stock and any Common Stock
Equivalents, in each case, whether owned on the date hereof or
acquired hereafter.
"Subordinated Notes" means the subordinated notes issued in
connection with the May Financing and the subordinated notes issuable
as interest on such notes.
"Subsidiary" means, with respect to any Person, (i) any
corporation, partnership or other entity of which shares of capital
stock or other ownership interests having ordinary voting power to
elect a majority of the board of directors
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or other similar managing body of such corporation, partnership or
other entity are at the time owned by such Person, or (ii) the
management of which is otherwise Controlled, directly or indirectly,
through one or more intermediaries by such Person.
"Supplemental Agreement" has the meaning set forth in Section
4.1(a) hereof.
"Total Shares" means the total number of shares of Common
Stock issued and outstanding, assuming the exercise, exchange or
conversion of all outstanding Common Stock Equivalents.
"Transfer" as to any Stock, means to sell, or in any other way
directly or indirectly transfer, assign, distribute, pledge, encumber
or otherwise dispose of, either voluntarily or involuntarily.
"Transferee" means a Person that acquires any shares of Stock,
or any interest therein, as a result of a Transfer.
"Transferor" means a Person that Transfers shares of Stock, or
any interest therein.
"Voting Shares" means any securities of the Company the
holders of which are generally entitled to vote for members of the
Board of Directors.
"Widely Distributed Offering" means an offering of shares of
Common Stock for sale in a transaction which constitutes a Qualified
Public Sale and in which no Person acquires from the Transferor of the
Stock (either directly or indirectly through one or more underwriters,
dealers or other intermediaries, in a single transaction or a series
of related transactions) shares which represent 1% or more of the
total number of outstanding shares of Common Stock.
SECTION 1.2 Methodology for Calculations. For purposes
of this Agreement, the Transfer of a Common Stock Equivalent shall be treated
as the Transfer of the shares of Common Stock into which such Common Stock
Equivalent can be converted, exchanged or exercised. Except as otherwise
provided in this Agreement, for purposes of calculating (i) the amount of
outstanding Common Stock as of any date, (ii) the amount of Common Stock held
by a Person hereunder and (iii) related percentages, all Common Stock
Equivalents shall be treated as having been converted, exchanged or exercised
for shares of Common Stock.
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ARTICLE II
AMENDED AND RESTATED AGREEMENT
SECTION 2.1 Effectiveness; Amended and Restated Agreement.
(a) This Agreement shall become effective, and the First
Amended and Restated Stockholders Agreement shall be amended and restated in its
entirety as set forth herein, upon the later of (i) the execution and delivery
of this Agreement by stockholders of the Company who are parties to the First
Amended and Restated Stockholders Agreement and who hold at least 66 2/3% of the
outstanding shares of Stock and (ii) the Initial Public Offering Effective Date.
(b) Notwithstanding paragraph (a) above, the provisions
of Section 3.9 shall be binding on each party (and such provisions shall,
insofar as they relate to such party, become effective) immediately upon the
execution of this Agreement by such party.
(c) Notwithstanding paragraph (a) above, the provisions of
Article IV shall be binding on DLB and DLJ (and such provisions shall, insofar
as they relate to DLB and DLJ, become effective) immediately upon the execution
of this Agreement by DLB and DLJ.
SECTION 2.2 Continuing and Departing Stockholder Parties. As of
the date upon which this Agreement becomes effective, (i) the parties to this
Agreement shall be the Continuing Stockholder Parties and (ii) the Departing
Stockholder Parties shall not be parties to this Agreement and shall have no
rights or obligations hereunder.
ARTICLE III
CORPORATE GOVERNANCE
SECTION 3.1 Board of Directors. From and after the date upon
which this Agreement becomes effective, each Continuing Stockholder Party shall
use its best efforts and shall take all necessary actions within its power,
including without limitation, (x) the voting of all Voting Shares owned by such
Continuing Stockholder Party at any annual or special meeting of the
stockholders of the Company called for the purpose of voting on the election of
directors or (y) consenting with respect to all Voting Shares owned by such
Continuing Stockholder Party in connection with any written consent of the
stockholders
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of the Company to be delivered in connection with the election of directors, to
effectuate and carry out the following provisions:
(a) Board of Directors. The Company shall at all times
be managed by or under the direction of the board of directors (the "Board
of Directors"), which shall consist of no more than ten members.
(b) Composition of the Board of Directors.
(i) In connection with any election for members
of the Board of Directors, the Company shall, at the request
of Energy Spectrum, include in the slate of directors
recommended by the Board of Directors to the stockholders of
the Company for election as directors one representative
designated by Energy Spectrum so long as Energy Spectrum holds
(x) 5% or more of the outstanding Common Stock, (y) at least
$1,260,000 in principal amount of the Subordinated Notes
purchased by it pursuant to the May Financing or (z) 600,000
shares of Common Stock (such representative designated by
Energy Spectrum being referred to herein as the "Energy
Spectrum Designee").
(ii) In connection with any election for members
of the Board of Directors, the Company shall, at the request
of AnSon, include in the slate of directors recommended by the
Board of Directors to the stockholders of the Company for
election as directors one representative designated by AnSon
so long as the AnSon Group holds (x) 5% or more of the
outstanding Common Stock or (y) 600,000 shares of Common Stock
(such representative designated by AnSon being referred to
herein as the "AnSon Designee").
(iii) In connection with any election for members
of the Board of Directors, the Company shall, at the request
of the DLB Designator, include in the slate of directors
recommended by the Board of Directors to the stockholders of
the Company for election as directors one representative
designated by the DLB Designator so long as the DLB Group
holds 5% or more of the outstanding Common Stock (such
representative designated by the DLB Designator being referred
to herein as the "DLB Designee").
(iv) The Company and each Continuing Stockholder
Party shall each use its best efforts to cause each of the
Energy Spectrum
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Designee, the AnSon Designee and the DLB Designee
(collectively, the "Designees") to be elected to, and to be
maintained as members of, the Board of Directors (including,
(x) in the case of the Company, recommending to the
stockholders of the Company the election of each of the
Designees to the Board of Directors and opposing any proposal
to remove any Designee at each meeting of stockholders of the
Company at which the election or removal of members of the
Board of Directors is on the agenda and (y) in the case of
each Continuing Stockholder Party, voting all of their Voting
Shares in favor of each of the Designees, and voting such
shares against any Person opposing any Designees), and shall
take no action which would diminish the prospects of the
Designees being elected to the Board of Directors or increase
the prospects of any Designees being removed from the Board of
Directors. Once elected, the Energy Spectrum, AnSon and DLB
Designees shall be deemed to be the Energy Spectrum, AnSon and
DLB Directors, respectively, for all purposes under this
Agreement.
(c) Committees. The Board of Directors may, by
resolution passed by a majority of the members of the Board of Directors,
designate one or more committees to conduct the business of the Board of
Directors in respect of audit, compensation, nomination and other
appropriate matters; provided, however, that the Board of Directors may
not designate a committee of the Board of Directors, such as an executive
committee, to exercise all of the general powers and authority of the
Board of Directors in the management of the business and the affairs of
the Company.
(d) Vacancies. If any AnSon Director, Energy Spectrum
Director or DLB Director shall cease to serve as a director of the Company
for any reason, the vacancy resulting thereby shall be filled by another
Person designated by AnSon in the case of an AnSon Director, Energy
Spectrum in the case of an Energy Spectrum Director and DLB in the case of
a DLB Director.
(e) Removal. None of the Energy Spectrum Director, the
AnSon Director or the DLB Director shall be removed from office without
the consent of the Continuing Stockholder Party or Parties entitled to
designate such director. Each director on the Board of Directors may be
retired from office at any time, with or without cause, at the request of
the Continuing Stockholder Party or Parties entitled to designate such
director.
SECTION 3.2 Energy Spectrum Non-Voting Observer. If at any meeting
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for the election of directors any Energy Spectrum Director or Energy Spectrum
Designee is not elected to the Board of Directors, or if for any other reason,
at any time, an Energy Spectrum Director is not a member of the Board of
Directors, Energy Spectrum, so long as Energy Spectrum shall hold 1% or more of
the Total Shares, shall be entitled to have one observer (an "Energy Spectrum
Non-Voting Observer"), selected by Energy Spectrum, present at all meetings of
the Board of Directors. The Energy Spectrum Non-Voting Observer shall have the
same access to information concerning the business and operations of the
Company at the same time as directors of the Company and shall be entitled to
participate in discussions and consult with, and make proposals and furnish
advice to, the Board of Directors, without voting; provided, however, that the
Board of Directors shall be under no obligation to take any action with respect
to any proposals made or advice furnished by the Energy Spectrum Non-Voting
Observer, other than to give due consideration thereto. In addition to any
requirements specified in the Bylaws, the Company shall notify the Energy
Spectrum Non- Voting Observer, by telecopy, of every meeting, or action by
written consent, of the Board of Directors at least two days in advance of such
meeting or distribution of written consents, or, if such notice under the
circumstances is not practicable, as soon before the meeting or distribution as
is practicable, provided that nothing in this Section 3.2 shall be construed in
any way to authorize or allow a party hereto not to comply with its obligations
hereunder.
SECTION 3.3 Representatives. In the event that, after receiving
proper notice of a meeting of the Board of Directors (and any committee
thereof), or a meeting of any board of directors or similar managing body of
any Subsidiary of the Company in accordance with such entity's bylaws, if any
member of the Board of Directors elected pursuant to Section 3.1 or any Energy
Spectrum Non-Voting Observer determines that he or she is unable to attend such
meeting, the Continuing Stockholder Party which designated such director or
observer shall have the right to designate a representative to attend and
observe such meeting on behalf of such Continuing Stockholder Party, which
representative shall be entitled to fully participate, other than the right to
vote, in such meeting as if he or she were, as the case may be, an Energy
Spectrum Non-Voting Observer, a member of the Board of Directors (or committee
thereof), or a member of the board of directors or similar managing body of the
relevant Subsidiary of the Company.
SECTION 3.4 Directors' and Officers' Indemnification.
(a) The Certificate, Bylaws and other organizational
documents of the Company and each of its Subsidiaries shall at all times,
to the fullest extent permitted by law, provide for indemnification of,
advancement of expenses to, and limitation of the personal liability of,
the members of the Board of Directors and the members of the boards of
directors or other similar managing bodies of each of the
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16
Company's Subsidiaries and such other Persons, if any, who, pursuant to a
provision of such Certificates, Bylaws or other organizational documents,
exercise or perform any of the powers or duties otherwise conferred or
imposed upon members of the Board of Directors or the boards of directors
or other similar managing bodies of each of any Subsidiary of the Company.
Any Energy Spectrum Non-Voting Observer shall be entitled to
indemnification from the Company to the maximum extent permitted by law as
though he or she were a director of the Company and any of its
Subsidiaries. This paragraph (a) may not be amended, repealed or
otherwise modified in any manner adverse to any member of the Board of
Directors, any Energy Spectrum Non-Voting Observer or any member of the
boards of directors or other similar managing bodies of any Subsidiary of
the Company, without the consent of a majority of the members of the Board
of Directors.
(b) Each of the members of the Board of Directors and
each Energy Spectrum Non-Voting Observer is intended to be a third-party
beneficiary of the obligations of the Company pursuant to this Section
3.4, and the obligations of the Company pursuant to this Section 3.4 shall
be enforceable by each such individual.
SECTION 3.5 Contractual Management Rights. The Company and each
Continuing Stockholder Party acknowledge that the provisions of this Agreement,
including this Article III, are intended to provide Energy Spectrum with
"contractual management rights" within the meaning of the ERISA.
SECTION 3.6 Expenses. Subject to proper documentation being
provided to the Company, the Company shall pay the reasonable out-of-pocket
expenses incurred by each of the members of the Board of Directors and any
Energy Spectrum Non-Voting Observer in connection with performing his or her
duties, including without limitation, the reasonable out- of-pocket expenses
incurred by such Person attending meetings of the Board of Directors or any
committee thereof or meetings of any board of directors or other similar
managing body (and any committee thereof) of any Subsidiary of the Company.
SECTION 3.7 Certain Restrictions. No Continuing Stockholder
Party shall grant any proxy, other than to an officer of the Company designated
by the Board of Directors, or enter into or agree to be bound by any voting
trust agreement or arrangement of any kind with respect to any shares of Common
Stock, nor shall any Continuing Stockholder Party enter into any stockholder
agreement or arrangement of any kind with respect to any shares of Common Stock
inconsistent with the provisions of this Agreement, including, but not limited
to, any agreement or arrangement with respect to the voting of
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17
shares of Common Stock, or act as a member of a group or in concert with any
other Person in connection with the acquisition of shares of Common Stock in
any manner inconsistent with the provisions of this Agreement.
SECTION 3.8 Cooperation. Each Continuing Stockholder Party shall
vote all of its Voting Shares and shall take all other necessary actions within
its control, including without limitation, attending all meetings in person or
by proxy for purposes of obtaining a quorum, executing all written consents in
lieu of meetings and voting to remove members of the Board of Directors, as
applicable, and the Company shall take all necessary and desirable actions
within its control, including without limitation, calling special Board of
Directors and stockholder meetings and voting to remove members of the Board of
Directors, as applicable, to effectuate the provisions of this Article III.
SECTION 3.9 Designation of DLB Director Prior to Initial Public
Offering. In the event that the Initial Public Offering Date shall not have
occurred prior to or on December 1, 1997, upon request of DLB or the DLB
Successor, each party to this Agreement shall use its reasonable best efforts
to cause the Company and each other party to the First Amended and Restated
Stockholders Agreement to enter into an appropriate amendment to the First
Amended and Restated Stockholders Agreement which grants to DLB and the other
members of the DLB Group the right to designate a member of the Board of
Directors on terms which are at least as favorable to DLB and the other members
of the DLB Group as those set forth in Section 3.1 hereof.
ARTICLE IV
RESTRICTIONS ON TRANSFER
SECTION 4.1 Restrictions on Transfer.
(a) General Restrictions. No Continuing Stockholder
Party shall effect any Transfer of shares of Stock owned or held by such
Continuing Stockholder Party (other than pursuant to a Qualified Public
Sale) unless (i) the certificate or certificates representing such shares
bear a legend as provided in Section 7.1 hereof (or, in the case of a
Transfer pursuant to the DLB Distribution, the applicable legend set forth
in Section 7.2 hereof), (ii) the Transferee of such shares of Stock shall
have executed, as a condition to obtaining ownership of such shares, an
appropriate document (a "Supplemental Agreement") in which the Transferee
agrees that its ownership of such shares shall be subject to, and that the
Transferee shall comply with, all of the terms and conditions of this
Agreement and that the Transferee shall not effect any Transfer of such
shares except in compliance
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with the provisions hereof and (iii) the Supplemental Agreement shall have
been promptly delivered to the Company and approved by it in its
reasonable discretion prior to the acquisition by such Transferee of the
shares of Stock; provided, however, that a DLB Stockholder who is not a
member of the DLB Group and who acquires shares of Stock pursuant to the
DLB Distribution shall not be obligated to execute and deliver a
Supplemental Agreement as contemplated by clauses (i) and (ii) above. The
Company shall not unreasonably withhold or delay its approval of any
Supplemental Agreement. A Transferee that is not already a party to this
Agreement, by executing a Supplemental Agreement approved by the Company
as hereinabove provided, shall become a Continuing Stockholder Party for
all purposes of this Agreement and shall have the same rights and shall be
subject to the same restrictions as the Continuing Stockholder Party
effecting the Transfer.
(b) Restrictions on Transfer During Initial 180-Day
Period. Notwithstanding any provision of this Agreement to the contrary,
until the expiration of 180 days after the Initial Public Offering
Effective Date, no Continuing Stockholder Party shall (other than pursuant
to the DLB Distribution) directly or indirectly offer, sell, contract to
sell, pledge, grant any option, right or warrant to purchase or otherwise
Transfer or dispose of any Stock owned or held by such Continuing
Stockholder Party or, in any manner, Transfer all or a portion of the
economic consequences associated with the ownership of such Stock, without
the prior written consent of the Company acting through its Board of
Directors, with any members of the Board of Directors designated or
elected by such Continuing Stockholder Party pursuant to Article III
recusing themselves in such vote. Each Continuing Stockholder Party
agrees that the Company may, and that each Continuing Stockholder Party
will, (i) with respect to any Stock for which a Continuing Stockholder
Party is the record holder, cause the transfer agent for the Company to
note stop transfer instructions with respect to such Stock on the transfer
books and records of the Company and (ii) with respect to any Stock for
which a Continuing Stockholder Party is the beneficial holder but not the
record holder, cause the record holder of such Stock to cause the transfer
agent for the Company to note stop transfer instructions with respect to
such Stock on the transfer books and records of the Company; provided,
however, that DLB shall only be required to comply with such stop transfer
obligations with respect to Transfers other than pursuant to the DLB
Distribution.
(c) Restriction on Transfer of 5% Holdings. No
Continuing Stockholder Party shall effect any Transfer (other than
pursuant to the DLB Distribution or a Qualified Public Sale) of shares of
Stock constituting 5% or more of the Total Shares to any Person or group
of Affiliated Persons, unless such
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Continuing Stockholder Party receives the prior written consent of the
Company acting through its Board of Directors (which consent shall not be
unreasonably withheld), with any members of the Board of Directors
designated or elected by such Continuing Stockholder Party pursuant to
Article III recusing themselves in such vote.
(d) Restrictions on Transfer by DLB Group.
Notwithstanding any provision of this Agreement to the contrary, (other
than clause (e) below) none of DLB, any other member of the DLB Group or
the DLB Successor shall, at any time, effect any Transfer of all or any
part of the shares of Stock owned or held by it except (i) in the DLB
Distribution, (ii) in a Widely Distributed Offering or (iii) in a
transaction which does not involve a Transfer of such shares to a Person
who is a Competitor of the Company and which has been approved by the
Company acting through its Board of Directors (which approval shall not be
unreasonably withheld), with any members of the Board of Directors
designated or elected by the DLB Designator pursuant to Article III
recusing themselves in such vote.
(e) Transfer Upon Foreclosure By Administrative Agent.
(i) Bonray Holding (as defined below) shall
(notwithstanding any provision herein to the contrary, but subject to
compliance with subparagraph (ii) of this paragraph (e)) be permitted to
pledge the shares (the "Pledged Shares") of Stock owned or held by it to
the Administrative Agent (as defined below), for the benefit of the
Administrative Agent and the Lenders (as defined below) to secure the
obligations of Bonray Holding owing the Administrative Agent and the
Lenders under the Credit Agreement (as defined below). In the event that
any event or circumstance occurs or exists (including, without limitation,
the failure to pay any amount when due thereunder) that entitles the
Administrative Agent to accelerate the maturity of the obligations of
Bonray Holding under the Credit Agreement, or in the event that any amount
owing by Bonray Holding under the Credit Agreement is not paid when due at
final maturity, the Adminsitrative Agent may (notwithstanding any
provision herein to the contrary, but subject to subparagraph (ii) of this
paragraph (e) and the agreement of the Administrative Agent referred to in
said subparagraph) exercise its remedies (the "Remedies") as a secured
party with repsect to any Pledged Shares. Any Transferee of the Pledged
Shares that acquires the Pledged Shares pursuant to the exercise by the
Administrative Agent of its Remedies shall (notwithstanding any provision
herein to the contrary) not succeed to or acquire any rights under or be
bound by any obligations of this Agreement with respect to the Pledged
Shares.
(ii) As a condition precedent to the pledge by Bonray
Holding of the Pledged Shares contemplated by this paragraph (e), DLB shall
deliver to the Company an agreement by the Administrative Agent, in form
satisfactory to the Company, to the effect that the Administrative Agent
(1) shall not, without the prior written approval of the Company acting
through its Board of Directors (which approval shall not be unreasonably
withheld), with any members of the Board of Directors designated or elected
by the DLB Designator pursuant to Article III recusing themselves in such
vote, Transfer the Pledged Shares to a Person who is a Competitor, (2)
shall not Transfer any of the Pledged Shares other than in accordance
with the Securities Act and applicable United States state securities
laws, (3) subject to subparagraph (iii) of this paragraph (e), shall at all
times be bound by the requirements of Section 7.1 regarding the general
legend to be contained on certificates representing the Pledged Shares and
(4) shall at all times be bound by the requirements of Section 4.1(b)
except, that, solely for the purposes of this paragraph (e), to the
extent the Initial Public Offering Effective Date has not occurred prior
to December 1, 1997, the requirements of Section 4.1(b) shall not apply
during the period from December 1, 1997 until the Initial Public Offering
Effective Date).
(iii) In the event that the Administrative Agent
Transfers any Pledged Shares as permitted by this paragraph (e), the
Company, shall duly issue substitute certificates evidencing such
Transferred Pledged Shares, which certificates shall omit the legend
referred to in Section 7.1(a)(ii). The Administrative Agent, the Lenders
and each Transferee of Pledged Shares are third party beneficiaries of
this paragraph (e).
As used in this paragraph (e), the following terms shall have
the following meanings:
"Administrative Agent" means ▇▇▇▇▇▇ Commercial Paper
Inc., as administrative agent under the Credit Agreement.
"Bonray Holding" means Bonray Holding, L.L.C., a
Delaware limited liability company.
"Credit Agreement" means that certain Credit Agreement,
dated as of July 11, 1997, by and among Bonray Holding, L.L.C. (as
successor to Bonray Drilling Corporation), the Lenders referred to therein
and ▇▇▇▇▇▇ Commercial Paper Inc. as administrative agent and as arranger.
"Lenders" means the Lenders referred to in the Credit
Agreement.
SECTION 4.2 Holdback Agreements; Adjustments.
(a) Each Continuing Stockholder Party agrees that, (i) to
the extent requested in writing by a managing underwriter of any
underwritten public offering effected pursuant to a demand registration
request under any Registration Rights Agreement to which such Continuing
Stockholder Party is a party, such Continuing Stockholder Party will not
Transfer any Stock or any other equity security of the Company (other than
as part of such underwritten public offering) during the time period
reasonably requested by the managing underwriter, not to exceed 180 days,
and (ii) to the extent requested in writing by a managing underwriter of
any underwritten public offering effected by the Company for its own
account within three years after the date upon which this Agreement
becomes effective, such Continuing Stockholder Party will not Transfer
after such offering any of the Stock or any other equity security of the
Company (other than as part of such underwritten public offering) during
the time period reasonably requested by the managing underwriter, which
period shall (x) not exceed 180 days, in the event that such Continuing
Stockholder Party participates in such public offering pursuant to
"piggyback" registration rights granted under any Registration Rights
Agreement to which such Continuing Stockholder Party is a party, and (y)
not exceed 120 days, in the event that any such Continuing Stockholder
Party does not so participate in such public offering.
(b) The Company shall take all reasonable steps necessary to
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effect a subdivision or consolidation of shares if, with respect to any
demand registration request under any Registration Rights Agreement, in
the reasonable judgment of the managing underwriter for the offering in
respect of such demand registration, such subdivision or consolidation
would enhance the marketability of the securities proposed to be
registered thereunder. Each Continuing Stockholder Party shall vote all
of its shares of Capital Stock in a manner, and shall take all other
actions necessary, to permit the Company to carry out the intent of the
preceding sentence, including without limitation, voting in favor of an
amendment to the Certificate in order to increase or decrease (as the case
may be) the number of authorized shares of Capital Stock of the Company.
SECTION 4.3 Pledge of Shares. A Continuing Stockholder Party
shall have the right to pledge any Stock owned or held by such Continuing
Stockholder Party to the Company, a commercial bank, savings and loan
association or other lending or financial institution as security for any
Indebtedness of such Continuing Stockholder Party; provided, however, that no
such pledge shall be made unless: (a) the Person to which such pledge is made
shall have executed an appropriate document in which such Person agrees that,
in the event of realization upon such Stock, such realization shall be deemed a
Transfer and the shares of such Stock shall continue to be subject to the terms
and conditions of this Agreement and that such Person will not effect any
Transfer of such Stock except in compliance with the provisions hereof; and (b)
such document shall have been promptly delivered to, and shall have been
approved by, the Board of Directors prior to the pledge of such Stock. The
Board of Directors shall not unreasonably withhold or delay its approval of any
such document.
SECTION 4.4 Securities Laws. Each holder and Transferee of
shares of Common Stock bearing the restrictive legend set forth in Section 7.1
hereof ("Restricted Shares"), by acceptance thereof, agrees that, unless a
registration statement is in effect under the Securities Act with respect to
the sale or other disposition of such Restricted Shares, prior to any Transfer
or attempted Transfer of such Restricted Shares pursuant to this Article IV,
such holder shall give the Company (a) written notice describing the proposed
Transfer of any Restricted Shares in reasonable detail, (b) certification that
the proposed Transferee of the Restricted Shares is an Accredited Investor, (c)
such other information about the proposed Transfer of such Restricted Shares or
the proposed Transferee of such Restricted Shares as the Company may reasonably
request and (d) an opinion of counsel reasonably acceptable to the Company to
the effect that the proposed Transfer of such Restricted Shares may be effected
without registration of such Restricted Shares under the Securities Act and
applicable United States state securities laws. In addition, if the holder of
the Restricted Shares delivers to the Company an opinion of counsel that
subsequent Transfers of such Restricted Shares will not require registration or
qualification under the
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21
Securities Act, the Company shall cause the transfer agent promptly after such
contemplated Transfer to deliver new certificates for such Restricted Shares
that do not bear the legend set forth in Section 7.1 hereof. If the foregoing
conditions entitling the holder to effect a proposed Transfer of such
Restricted Shares without registration under the Securities Act have not been
satisfied, the holder shall not Transfer the Restricted Shares, and the Company
shall cause the transfer agent not to Transfer such Restricted Shares on its
books or issue any certificates representing such Restricted Shares. Any
purported Transfer not in accordance with the terms hereof shall be void ab
initio.
ARTICLE V
COVENANTS
SECTION 5.1 Confidentiality. Each Continuing Stockholder Party
who receives any confidential information or other proprietary information or
data from the Company or from any representative of the Company concerning the
business of the Company (including without limitation information regarding
strategic plans, planned acquisitions or dispositions, financing sources,
operating performance, financial statements or other information), shall hold
such information or data in strictest confidence and shall not disclose such
information or data to any other Person or use such information or data for
such Continuing Stockholder Party's own benefit or for the benefit of any other
Person without the prior written consent of the Company.
SECTION 5.2 Cooperation with Financings. Each Continuing
Stockholder Party shall provide the Company with all information that is
reasonably required to effect any public or private offering of securities of
the Company, including completing and executing all undertakings,
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of any underwriting
agreement or other financing agreement or under applicable law.
SECTION 5.3 No Conflicting Agreements. No Continuing Stockholder
Party shall grant any proxy or become party to any voting trust or other
agreement which is inconsistent with or conflicts with any provision of this
Agreement.
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ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.1 Representations and Warranties. Each party hereto
represents and warrants to the other parties hereto as follows:
(a) Such party hereto has full power and authority to
execute, deliver and perform its obligations under this Agreement.
(b) This Agreement has been duly and validly authorized,
executed and delivered by such party hereto, and constitutes a valid and
binding obligation of it, enforceable against it in accordance with its
terms except to the extent that enforceability may be limited by
bankruptcy, insolvency or other similar laws affecting creditors' rights
generally.
(c) The execution, delivery and performance of this
Agreement by such party hereto does not (i) violate, conflict with, or
constitute a breach of or default under its organizational documents, if
any, or any material agreement to which it is a party or by which it is
bound or (ii) violate any law, regulation, order, writ, judgment,
injunction or decree applicable to it.
(d) No consent or approval of, or filing with, any
governmental or regulatory body is required to be obtained or made by such
party hereto in connection with the transactions contemplated hereby.
(e) Such party hereto has not granted and is not a party
to any proxy, voting trust or other agreement which is inconsistent with
or conflicts with the rights of any party hereunder or otherwise conflicts
with any provision of this Agreement.
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ARTICLE VII
MISCELLANEOUS
SECTION 7.1 General Legend.
(a) Each Continuing Stockholder Party and the Company
shall take all such action necessary to cause each certificate representing
outstanding shares of Stock to bear the following legends containing the
following words:
(i) "THE SECURITIES REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT") OR ANY STATE SECURITIES LAWS. THE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT
AND MAY NOT BE OFFERED, SOLD, PLEDGED,
HYPOTHECATED, EXCHANGED, TRANSFERRED OR
OTHERWISE DISPOSED OF (i) UNLESS (A)
REGISTERED UNDER THE ACT AND ANY APPLICABLE
STATE SECURITIES AND "BLUE SKY" LAWS OR (B)
AN EXEMPTION FROM REGISTRATION UNDER THE ACT
AND ANY SUCH LAWS IS AVAILABLE AND, IN SUCH
CASE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE REASONABLY SATISFACTORY TO BAYARD
DRILLING TECHNOLOGIES, INC. (THE "COMPANY")
SHALL HAVE BEEN DELIVERED TO THE COMPANY TO
THE EFFECT THAT THE OFFER, SALE, TRANSFER,
DISPOSITION, PLEDGE, HYPOTHECATION OR
EXCHANGE THEREOF IS EXEMPT FROM REGISTRATION
UNDER THE ACT AND ANY SUCH LAWS OR (ii)
UNLESS SOLD PURSUANT TO AND IN COMPLIANCE
WITH RULE 144 OF THE ACT AND APPLICABLE
SECURITIES OR "BLUE SKY" LAWS."
(ii) "IN ADDITION, THE SECURITIES REPRESENTED BY
THIS CERTIFICATE ARE SUBJECT TO THE
RESTRICTIONS ON TRANSFER AND TO THE VOTING
AGREEMENTS SET FORTH IN THE SECOND AMENDED
AND RESTATED STOCKHOLDERS AND VOTING
AGREEMENT, DATED AS OF OCTOBER __, 1997, BY
AND AMONG THE COMPANY AND THE PARTIES
THERETO, A COPY OF WHICH IS ON FILE
IN THE OFFICE OF THE COMPANY."
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(b) The requirement that the securities legend in clause
(i) above be placed upon certificates evidencing shares of Stock shall
cease and terminate upon the earliest of the following events: (1) when
such shares are Transferred pursuant to the DLB Distribution, (2) when
such shares are Transferred in a Qualified Public Sale or (3) when such
shares are Transferred in any other transaction if the Transferor delivers
to the Company an opinion of its counsel, which counsel and opinion shall
be reasonably satisfactory to the Company to the effect that such legend
is no longer necessary in order to protect the Company against a violation
by it of the Securities Act upon any sale or other disposition of such
shares without registration thereunder. The requirement that the legend
regarding this Agreement in clause (ii) above be placed upon certificates
evidencing shares of Stock shall cease and terminate upon the earliest of
the following events: (A) when such shares are Transferred to Persons
other than the members of the DLB Group pursuant to the DLB Distribution
or (B) when such shares are Transferred in a Qualified Public Sale. Upon
the consummation of any event requiring the removal of a legend hereunder,
the Company, upon the surrender of certificates containing such legend,
shall, at its own expense, deliver to the holder of any such shares of
Stock as to which the requirement for such legend shall have terminated,
one or more new certificates evidencing such shares of Stock not bearing
such legend.
SECTION 7.2 DLB Distribution Legends.
(a) The Company, DLB and each other member of the DLB
Group shall take all such action necessary to cause each certificate
representing shares of Stock to be distributed in the DLB Distribution to
Persons other than the members of the DLB Group to bear a legend
containing the following words:
"NO HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE
MAY OFFER, PLEDGE, SELL, CONTRACT TO SELL, SELL ANY OPTION OR
CONTRACT TO PURCHASE, PURCHASE ANY OPTION OR CONTRACT TO SELL,
GRANT ANY OPTION, RIGHT OR WARRANT TO PURCHASE OR OTHERWISE
TRANSFER OR DISPOSE OF, DIRECTLY OR INDIRECTLY, ANY OF THE
SECURITIES OR ENTER INTO ANY SWAP OR OTHER ARRANGEMENT THAT
TRANSFERS ALL OR A
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PORTION OF THE ECONOMIC CONSEQUENCES ASSOCIATED WITH THE
OWNERSHIP OF THE SECURITIES (REGARDLESS OF WHETHER ANY OF THE
DESCRIBED TRANSACTIONS IS TO BE SETTLED BY THE DELIVERY OF THE
SECURITIES, IN CASH OR OTHERWISE) PRIOR TO [THE 180TH DAY
AFTER THE INITIAL PUBLIC OFFERING EFFECTIVE DATE]."
(b) The Company, DLB and each other member of the DLB
Group shall take all such action necessary to cause each certificate
representing shares of Stock to be distributed in the DLB Distribution to
members of the DLB Group to bear a legend containing the following words:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
THE RESTRICTIONS ON TRANSFER AND TO THE VOTING AGREEMENTS SET
FORTH IN THE SECOND AMENDED AND RESTATED STOCKHOLDERS AND
VOTING AGREEMENT, DATED AS OF OCTOBER __, 1997, BY AND AMONG
THE COMPANY AND THE PARTIES THERETO, A COPY OF WHICH IS ON
FILE IN THE OFFICE OF THE COMPANY."
SECTION 7.3 Duration of Agreement. The rights and obligations of
a Continuing Stockholder Party under this Agreement shall terminate at such
time as such Continuing Stockholder Party no longer is the beneficial holder of
any shares of Stock. This Agreement shall terminate upon the tenth anniversary
of the date upon which it becomes effective, except that the terms of Sections
3.1 through 3.8, 4.1, 4.2, 5.1, 7.6 and 7.13 hereof shall survive until, by
their respective terms, they are no longer operative.
SECTION 7.4 Further Assurances. At any time or from time to time
after the date hereof, the parties hereto agree to cooperate with each other,
and at the request of any other party hereto, to execute and deliver any
further instruments or documents and to take all such further action as such
other party may reasonably request in order to evidence or effectuate the
consummation of the transactions contemplated hereby and to otherwise carry out
the intent of the parties hereunder.
SECTION 7.5 Amendment and Waiver. Except as otherwise provided
herein, no modification, amendment or waiver of any provision of this Agreement
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26
shall be effective against the Company or any Continuing Stockholder Party
unless such modification, amendment or waiver is approved in writing by (i) the
Company and by (ii) the holders of at least (x) 66 2/3% of the outstanding
shares of Stock held by the Continuing Stockholder Parties with respect to
modifications, amendments or waivers of Section 3.1, 3.2, 3.3, 4.1 or 4.2
hereof or this Section 7.5, and (y) 51% of the outstanding shares of Stock held
by the Continuing Stockholder Parties in the case of all other provisions. In
addition, this Agreement may not be modified or amended in a manner that would
deny to Energy Spectrum, in the opinion of counsel to Energy Spectrum,
"contractual management rights" with respect to the Company within the meaning
of the ERISA. The failure of any party hereto to enforce any of the provisions
of this Agreement shall in no way be construed as a waiver of such provisions
and shall not affect the right of such party thereafter to enforce each and
every provision of this Agreement in accordance with its terms.
SECTION 7.6 Severability. Whenever possible, each provision of
this Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect under any applicable law or
rule in any jurisdiction, such invalidity, illegality or unenforceability shall
not affect any other provision or any other jurisdiction, but this Agreement
shall be reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable provision had never been contained herein.
SECTION 7.7 Entire Agreement. Except as otherwise expressly set
forth herein, this document and the other documents dated the date hereof
embodies the complete agreement and understanding among the parties hereto with
respect to the subject matter hereof and supersedes and preempts any prior
understandings, agreements or representations by or among the parties, written
or oral, which may have related to the subject matter hereof in any way.
SECTION 7.8 Successors and Assigns. Except as otherwise provided
herein, this Agreement shall bind and inure to the benefit of and be
enforceable by the Company and its successors and assigns and each Continuing
Stockholder Party and its respective successors and assigns so long as they
hold Stock. Except pursuant to a Transfer of Stock in compliance with Article
IV, no Continuing Stockholder Party shall have the right to assign its rights
and obligations under this Agreement, without the consent of each of the other
Continuing Stockholder Parties.
SECTION 7.9 Counterparts. This Agreement may be executed in
separate counterparts each of which shall be an original and all of which taken
together shall constitute one and the same agreement.
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SECTION 7.10 Remedies. Each Continuing Stockholder Party shall be
entitled to enforce its rights under this Agreement specifically to recover
damages by reason of any breach of any provision of this Agreement and to
exercise all other rights existing in their favor. The parties hereto agree
and acknowledge that money damages may not be an adequate remedy for any breach
of the provisions of this Agreement, including without limitation any breach of
Article III, and that each party may in its sole discretion apply to any court
of law or equity of competent jurisdiction for specific performance and/or
injunctive relief (without posting a bond or other security) in order to
enforce or prevent any violation of the provisions of this Agreement.
SECTION 7.11 Notices. Any notice or other communication required
or permitted hereunder shall be in writing and shall be delivered by hand, by
telex or telecopier, or by certified or registered mail, postage prepaid and
return receipt requested. Notices shall be deemed to have been given upon
delivery, if delivered by hand, three days after mailing, if mailed, one
Business Day after delivery to the courier, if delivered by overnight courier
service, and upon receipt of an appropriate electronic confirmation, if by
telex or telecopier. Notices shall be delivered to the Company at the address
set forth below and to any other recipient at the address indicated on Schedule
7.11 hereto and to any subsequent holder of Stock subject to this Agreement at
such address as indicated by the Company's records, or at such address or to
the attention of such other Person as the recipient party has specified by
prior written notice to the sending party. The Company's address is:
Bayard Drilling Technologies, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: President
SECTION 7.12 Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware without
giving effect to the principles of conflicts of law.
SECTION 7.13 Headings. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement. This Agreement is intended to be a voting agreement among
stockholders as permitted by Section 218(c) of the Delaware General Corporation
Law.
SECTION 7.14 Construction. Where specific language is used to
clarify by example a general statement contained herein, such specific language
shall not be deemed to modify, limit or restrict in any manner the construction
of the general statement to which it relates. The language used in this
Agreement shall be deemed to be the language chosen by the parties hereto to
express their mutual intent, and no rule of strict construction shall be
applied against any party.
- 24 -
28
IN WITNESS WHEREOF, the parties hereto have executed this
Second Amended and Restated Stockholders and Voting Agreement on the day and
year first above written.
THE COMPANY:
BAYARD DRILLING TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
President
CONTINUING STOCKHOLDER PARTIES:
ANSON PARTNERS LIMITED PARTNERSHIP
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
--------------------------------
General Partner
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
-------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
- 25 -
29
ENERGY SPECTRUM PARTNERS LP
By: Energy Spectrum Capital LP, its General
Partner
By: Energy Spectrum LLC, its General
Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Title: President
------------------------------
DLB OIL AND GAS, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Title: President
------------------------------
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
By: /s/ ▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇ ▇▇▇▇▇
-------------------------------
Title:
------------------------------
DEPARTING STOCKHOLDER PARTIES:
CHESAPEAKE ENERGY CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
Title: CEO
------------------------------
30
▇.▇. ▇▇▇▇▇▇ DRILLING, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Title: President
------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ENERGY EQUIPMENT
RESOURCE, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Title: President
------------------------------
GRUPO DE HERCULES, LTD.
By: ▇▇▇▇▇▇-▇▇▇▇▇▇ Rig Investments Group, Inc.
General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Title: President
------------------------------
▇▇▇▇▇▇-▇▇▇▇▇▇ PARTNERSHIP, LTD.
By: ▇▇▇▇▇▇-▇▇▇▇▇▇ Rig Investments Group, Inc.
General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Title: President
------------------------------
31
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇ ▇▇▇▇▇
------------------------------------
▇▇ ▇▇▇▇▇
32
SCHEDULE 7.11
CONTINUING STOCKHOLDER PARTIES ADDRESSES FOR NOTICE
AnSon Partners Limited Partnership
Lakepoint Towers
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
(▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (Fax)
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
c/o AnSon Partners Limited Partnership
Lakepoint Towers
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (Fax)
Energy Spectrum Partners LP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (Fax)
DLB Oil and Gas, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (Fax)
33
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (Fax)