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EXHIBIT 10.27
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STOCK TRANSFER RESTRICTION AGREEMENT
BY AND BETWEEN
BAYARD DRILLING TECHNOLOGIES, INC.
AND
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ SECURITIES CORPORATION
NOVEMBER 3, 1997
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STOCK TRANSFER RESTRICTION AGREEMENT
BAYARD DRILLING TECHNOLOGIES, INC.
This STOCK TRANSFER RESTRICTION AGREEMENT (this "Agreement")
is made as of November 3, 1997, by and between Bayard Drilling Technologies,
Inc., a Delaware corporation (the "Company"), and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Securities Corporation ("DLJ").
WITNESSETH:
WHEREAS, in connection with that certain Agreement and Plan of
Merger, dated as of October 9, 1997, by and among DLB Oil and Gas, Inc., the
Company, Bonray Acquisition Corp. and Bonray Drilling Corporation, DLJ acquired
60,000 shares (the "DLJ Shares") of Common Stock (as herein defined);
WHEREAS, as of October 16, 1997, the Company, DLJ and certain
of the Company's stockholders (the "Stockholder Parties") entered into that
certain Second Amended and Restated Stockholders and Voting Agreement (the
"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 therein
defined) and Common Stock Equivalents (as therein defined) and (iii) other
customary terms and conditions;
WHEREAS, as of the date hereof, the Company, DLJ and the
Stockholder Parties entered into that certain First Amendment to Second Amended
and Restated Stockholders and Voting Agreement (the "First Amendment"),
pursuant to which the parties thereto amended the Stockholders and Voting
Agreement to provide that DLJ will no longer be a party to the Stockholders and
Voting Agreement and will no longer be bound by any obligations thereof or have
any rights thereunder; and
WHEREAS, in order to induce the Company and the Stockholder
Parties to enter into the First Amendment, DLJ agreed to enter into this
Agreement;
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 DLJ agree as follows:
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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.
"Agreement" has the meaning set forth in the Preamble hereto.
"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.
"Common Stock" means the Common Stock, par value $0.01 per
share, of the Company.
"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.
"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.
"DLJ" has the meaning set forth in the Preamble hereto.
"DLJ Shares" has the meaning set forth in the Recitals hereto.
"First Amendment" 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.
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"Initial Public Offering Effective Date" means the date of
effectiveness of the Initial Public Offering.
"Stockholders and Voting Agreement" has the meaning set forth
in the Recitals hereto.
"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 Agreement" means that certain
Registration Rights Agreement, dated as of October 16, 1997, by and
among the Company, DLB Oil & Gas, Inc. and DLJ, as such agreement may
be amended, modified, replaced or superseded from time to time
hereafter.
"Restricted Shares" has the meaning set forth in Section 2.4
hereof.
"Securities Act" means the Securities Act of 1933, as amended.
"Stockholder Parties" has the meaning set forth in the
Recitals hereto.
"Stockholders and Voting Agreement" has the meaning set forth
in the Recitals hereto.
"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 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
2.1(a) hereof.
"Transfer" means, as to any stock, to sell, or in any other
way directly or indirectly transfer, assign, distribute, pledge,
encumber or otherwise dispose of, either voluntarily or involuntarily,
such stock.
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"Transferee" means a Person that acquires the DLJ Shares, or
any interest therein, as a result of a Transfer.
"Transferor" means a Person that Transfers the DLJ Shares, 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 of the Company.
"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
(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. Except as
otherwise provided in this Agreement, for purposes of calculating (i) the
amount of outstanding Common Stock as of any date, and (ii) related
percentages, all securities convertible into, or exchangeable or exercisable
for, shares of Common Stock shall be treated as having been converted,
exchanged or exercised for shares of Common Stock.
ARTICLE II
RESTRICTIONS ON TRANSFER
SECTION 2.1 Restrictions on Transfer.
(a) General Restrictions. DLJ shall not effect
any Transfer of the DLJ Shares (other than pursuant to a Qualified
Public Sale) unless the certificate or certificates representing such
DLJ Shares bear a legend as provided in Section 7.1 hereof, (ii) the
Transferee shall have executed, as a condition to obtaining ownership
of such DLJ 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 DLJ Shares except in
compliance 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 DLJ Shares. The Company shall not
unreasonably withhold or delay its approval of any Supplemental
Agreement. A Transferee, by executing a Supplemental Agreement
approved by the Company as hereinabove provided, shall become a party
hereto for all purposes of this Agreement and shall have the same
rights and shall be subject to the same restrictions as DLJ.
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(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, DLJ shall not directly or indirectly
offer, sell, contract to sell, pledge, grant any option, right or
warrant to purchase or otherwise Transfer or dispose of the DLJ Shares
or, in any manner, Transfer all or a portion of the economic
consequences associated with the ownership of such DLJ Shares, without
the prior written consent of the Company acting through its Board of
Directors. DLJ agrees that the Company may, and that DLJ will cause
the transfer agent for the Company to, note stop transfer instructions
with respect to the DLJ Shares on the transfer books and records of
the Company.
(c) Restrictions on Transfer by DLJ.
Notwithstanding any provision of this Agreement to the contrary, DLJ
shall not, at any time, effect any Transfer of all or any part of the
DLJ Shares except (i) in a Widely Distributed Offering or (ii) 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).
SECTION 2.2 Holdback Agreements. DLJ 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 the
Registration Rights Agreement, DLJ will not Transfer the DLJ Shares (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 hereof, DLJ will not Transfer after such offering any of the DLJ
Shares (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 DLJ participates in such
public offering pursuant to "piggyback" registration rights granted under the
Registration Rights Agreement, and (y) not exceed 120 days, in the event that
DLJ does not so participate in such public offering.
SECTION 2.3 Pledge of Shares. DLJ shall have the right
to pledge the DLJ Shares to the Company, a commercial bank, savings and loan
association or other lending or financial institution as security for any
Indebtedness of DLJ; 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 DLJ Shares, such realization shall be deemed a Transfer
and the DLJ Shares shall continue to be subject to the terms and conditions of
this Agreement and that such Person will not effect any Transfer of the DLJ
Shares 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 the DLJ Shares. The Board of
Directors shall not unreasonably withhold or delay its approval of any such
document.
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SECTION 2.4 Securities Laws. DLJ and each Transferee of
DLJ Shares bearing the restrictive legend set forth in Section 5.1 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 II,
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 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 5.1
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 III
COVENANTS
SECTION 3.1 Confidentiality. If DLJ 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), DLJ 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
DLJ's own benefit or for the benefit of any other Person without the prior
written consent of the Company.
SECTION 3.2 Cooperation with Financings. DLJ 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.
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SECTION 3.3 No Conflicting Agreements. DLJ shall not
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.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1 Representations and Warranties. Each party
hereto represents and warrants to the other party 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 V
MISCELLANEOUS
SECTION 5.1 General Legend.
(a) DLJ and the Company shall take all such
action necessary to cause each certificate representing the DLJ Shares
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 SET FORTH IN THE STOCK TRANSFER RESTRICTION
AGREEMENT, DATED AS OF NOVEMBER 3, 1997, BY AND
BETWEEN THE COMPANY AND ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION, 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 the DLJ Shares
shall cease and terminate upon the earliest of the following events:
(1) when the DLJ Shares are Transferred in a Qualified Public Sale or
(2) when the DLJ 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 the DLJ
Shares shall cease and terminate 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 DLJ Shares as to which the
requirement for such legend shall have terminated, one or more new
certificates evidencing such DLJ Shares not bearing such legend.
SECTION 5.2 Duration of Agreement. This Agreement shall
terminate upon the tenth anniversary of the date upon which it becomes
effective, except that the terms of Sections 2.1, 2.2, 3.1, 5.5 and 5.10 hereof
shall survive until, by their respective terms, they are no longer operative.
SECTION 5.3 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 5.4 Amendment and Waiver. Except as otherwise
provided herein, no modification, amendment or waiver of any provision of this
Agreement shall be effective against the Company or DLJ unless such
modification, amendment or waiver is approved in writing by both the Company
and DLJ. 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 5.5 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
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and enforced in such jurisdiction as if such invalid, illegal or unenforceable
provision had never been contained herein.
SECTION 5.6 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 5.7 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 DLJ and its
respective successors and assigns so long as they hold DLJ Shares. Except
pursuant to a Transfer of the DLJ Shares in compliance with Article II, DLJ
shall not have the right to assign its rights and obligations under this
Agreement, without the consent of the Company.
SECTION 5.8 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.
SECTION 5.9 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 and DLJ at
the addresses set forth below 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.
If to the Company:
Bayard Drilling Technologies, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: President
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With a copy to:
▇▇▇▇▇ & ▇▇▇▇▇, L.L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇
If to DLJ:
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
SECTION 5.10 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 5.11 Headings. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of
this Agreement.
SECTION 5.12 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.
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IN WITNESS WHEREOF, the parties hereto have executed this
Stock Transfer Restriction Agreement on the day and year first above written.
THE COMPANY:
BAYARD DRILLING TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name:
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Title:
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▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
By: /s/ ▇▇▇ ▇▇▇▇▇
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Name:
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Title:
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