Exhibit 10.15
GREY WOLF, INC
AMENDMENT TO NON-QUALIFIED STOCK OPTION AGREEMENTS
November 13, 2001
THIS AMENDMENT TO NON-QUALIFIED STOCK OPTION AGREEMENT (this
"Agreement") is by and between Grey Wolf, Inc. (the "Corporation"), a Texas
Corporation, and EMPNAME (the "Optionee"), and is an amendment to all of those
certain Non-Qualified Stock Option Agreements entered into by and between the
Corporation and the Optionee as more particularly described on Exhibit "A"
hereto (the "Original Option Agreements") pursuant to the Corporation's 1996
Employee Stock Option Plan dated effective July 29, 1996 (the "Plan").
WHEREAS, the Corporation granted certain options to Optionee under the
Plan as more particularly described on Exhibit "A" hereto; and
WHEREAS, the Board of Directors of the Corporation has approved certain
changes to the Original Option Agreements in this Agreement pursuant to that
certain Consent of Directors dated November 13, 2001; and
WHEREAS, the Corporation and the Optionee deem it desirable, for and in
the best interests of the parties to this Agreement, to modify the Original
Option Agreements as provided herein.
NOW THEREFORE BE IT RESOLVED, that the Corporation and the Optionee do
hereby agree to amend the Original Option Agreements as follows:
1. Corporate Proceedings of the Corporation. Section 9(b) and 9(c) of
the Original Option Agreements shall be deleted in their entirety and the
following new Sections 9(b) and 9(c) substituted therefor and new Section 9(f)
shall be added:
"9. Corporate Proceedings of the Corporation.
(b) If the Corporation merges into or with or
consolidates with (such events collectively referred herein as
a "Merger") any corporation or corporations and is not the
surviving corporation, then the Corporation shall cause the
surviving corporation to assume the Option or substitute a new
option of the surviving corporation for the Option (with an
Exercise Period at least equal to the period remaining until
the Expiration Date for the Option). In the event that the
Option is assumed or a new option of the surviving corporation
is substituted for the Option (i) if, on the effective date of
the Merger, the Option is "in the money" the excess of the
aggregate fair market value of the shares subject to the
Option immediately after such assumption, or the new option
immediately after such substitution, over the aggregate
Exercise Price of such shares must be, based upon a good faith
determination by the Board of Directors of the Corporation,
not less than the excess of the aggregate fair market value of
the Common Stock subject to the Option immediately before such
substitution or assumption over the aggregate Exercise Price
of such Common Stock and (ii) if, on the effective date of the
Merger, the Option is "out of the money" the excess of the
aggregate Exercise Price of the shares subject to the Option
immediately after such assumption, or the new option
immediately after such substitution over the fair market value
of such shares must be, based upon a good faith determination
by the Board of Directors of the Corporation, not more than
the excess of the aggregate Exercise Price of the Common Stock
subject to the Option immediately before such assumption or
substitution over the aggregate fair market value of such
Common Stock.
(c) In the event of a dissolution or liquidation of
the Corporation, the Corporation shall cause written notice of
such dissolution or liquidation (and the material terms and
conditions thereof) to be delivered to the Optionee at least
ten (10) days prior to the proposed effective date (the
"Effective Date") of such event. The Optionee shall be
entitled to exercise the Option (as to all Option Shares,
whether or not the Option is then otherwise exercisable under
Section 2) until the Effective Date, or until the Expiration
Date if earlier. Any Option which has not been exercised on or
before the Effective Date shall terminate.
(f) In the event that neither the shares of stock of
the Corporation nor shares of stock of the surviving
corporation are listed on an established exchange as a result
of a "going private" transaction, the Fair Market Value of the
Option (as of all Option Shares, whether or not the Option is
then exercisable under Section 2) shall be determined as soon
as practicable after completion of the "going private"
transaction. Optionee shall be paid the Fair Market Value of
such Option by cashiers check or wire transfer of immediately
available funds within ten (10) days after the determination
of such Fair Market Value. The Option shall terminate upon
receipt of such payment by the Optionee. For purposes of this
Section 9(f), the "Fair Market Value" of the Option purchased
shall be determined as follows: (i) If the Optionee and the
Corporation can agree on the Fair Market Value of the Option
within fifteen (15) days following completion of the going
private transaction, the Fair Market Value will be the agreed
value of the Option; (ii) If the Optionee and Corporation
cannot agree on the Fair Market Value of the Option, the value
will be determined as follows: (1) Each party shall, within
thirty (30) days following completion of the going private
transaction, provide written notice of the appointment of an
appraiser to the other party. If the parties appoint the same
appraiser or if only one appraiser is timely appointed, then
the timely appointed appraiser shall be the only appraiser and
shall prepare and deliver the appraised value of the Option
taking into consideration the "Black-Scholes" method of
valuation of such Option within thirty (30) days following its
appointment; (2) If the parties each timely appoint different
appraisers, such appraisers shall agree upon a third appraiser
within fifteen (15) days following their appointment. If such
appraisers cannot agree upon a third appraiser within fifteen
(15) days following their appointment, either the Optionee or
the Corporation may petition any United States federal
district court in the Southern District of Texas to appoint
such appraiser; (3) Each appraiser shall complete his
appraisal of the Option taking into consideration the
"Black-Scholes" method of valuation of such Option and deliver
a copy of his written appraisal to the Optionee
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and the Corporation within thirty (30) days of such
appraiser's appointment; (4) If there is more than one
appraiser, the Fair Market Value shall be the mathematical
average of the two closest appraisals; (5) Each appraiser
appointed hereunder shall have been actively involved in the
business of valuing and appraising companies in the oil and
gas service industry for the five year period immediately
preceding the date of appointment; and (6) The parties
understand and agree that the value of the Option is dependent
upon a valuation of the Corporation and that the appraisers
shall have access to the business records, assets and
properties of the Corporation as they may reasonably request
for the purpose of appraising the value of the Option."
2. Termination. Section 11 of the Original Option Agreements shall be
deleted in their entirety and the following new Section 11 substituted therefor:
"11. Termination.
(a) Except as otherwise provided in this Section 11,
if the Optionee ceases to be employed by the Corporation, or a
parent or subsidiary corporation of the Corporation, and prior
to such cessation, the Optionee was employed at all times from
the date of the granting of the Option until the date of such
cessation, the Option must be exercised by the Optionee (to
the extent that the Optionee is entitled to do so at the date
of cessation) within three (3) months following the date of
cessation of employment, subject to the Expiration Date;
provided, however, that if the Optionee is terminated for
cause, the Option will immediately terminate. Notwithstanding
the foregoing, the Corporation may, in its sole discretion,
extend for a reasonable period the time in which the Optionee
may exercise the Option after the date of cessation of
employment, subject to the Expiration Date.
(b) If the Optionee becomes permanently and totally
disabled, as hereinafter defined, while employed by the
Corporation or a parent or subsidiary corporation of the
Corporation, and prior to such disability the Optionee was
employed at all times from the date of the granting of the
Option until the date of disability, the Option must be
exercised by the Optionee (to the extent that the Optionee is
entitled to do so at the date of disability) at any time on or
before: (i) the Expiration Date, if the Corporation determines
that the Optionee is permanently or totally disabled within
one (1) year after the date a Change of Control of the
Corporation shall be deemed to have occurred; or (ii) three
years after the Corporation determines the Optionee is
permanently or totally disabled, if such determination occurs
at any time other than within one (1) year after the date of a
Change of Control of the Corporation shall be deemed to have
occurred, and if not so exercised, the Option shall thereupon
terminate.
"Permanently and totally disabled" means being unable
to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than
twelve (12) months. In the absence of any specific
requirements for this determination, the decision of the
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Corporation, as aided by any physicians designated by the
Corporation shall be conclusive and the Corporation shall send
written notice to the Optionee of the determination that the
Optionee has become permanently and totally disabled.
(c) If the Optionee dies while employed by the
Corporation or a parent or subsidiary corporation of the
Corporation, and prior to death the Optionee was employed at
all times from the date of the granting of the Option until
the date of death, the Option must be exercised (to the extent
that the Optionee is entitled to do so at the date of death)
by a legatee or legatees of the Optionee under the Optionee's
will, or by the Optionee's personal representatives or
distributes, at any time on or before: (i) the Expiration
Date, if Optionee dies within one (1) year after the date a
Change of Control of the Corporation shall be deemed to have
occurred; or (ii) three years after the Optionee dies, if the
Optionee dies at any time other than within one (1) year after
the date a Change of Control of the Corporation shall be
deemed to have occurred and if not so exercised, the Option
shall thereupon terminate.
(d) Notwithstanding the foregoing, the Optionee may
exercise the Option as to all of the Option Shares (whether
previously exercisable or not) on or before the Expiration
Date if (i) a Change of Control of the Corporation shall be
deemed to have occurred and (ii) within one (1) year after the
date a Change of Control of the Corporation shall be deemed to
have occurred, Optionee's employment with the Corporation or a
parent or subsidiary corporation of the Corporation is
terminated for any reason other than (a) voluntary resignation
or retirement, (b) death or permanent and total disability, or
(c) Cause.
(e) Notwithstanding the foregoing, the Optionee may
exercise the Option as to all of the Option Shares (to the
extent the Optionee is entitled to do so at the date Optionee
ceases employment with the Corporation or a parent or
subsidiary corporation of the Corporation) on or before three
years after the date Optionee ceases employment with the
Corporation or a parent or subsidiary corporation of the
Corporation if Optionee's employment with the Corporation or a
parent or subsidiary corporation of the Corporation is
terminated at any time other than within one (1) year after
that date a Change of Control of the Corporation shall be
deemed to have occurred for any reason other than (a)
voluntary resignation or retirement, (b) death or permanent or
total disability, or (c) Cause.
For the purposes of this Agreement, a "Change of
Control of the Corporation" shall be deemed to have occurred
if after the effective date of this Agreement (i) any "person"
(as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934 (the "Act")) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Act),
directly or indirectly, of securities of the Corporation
representing 35% or more of the combined voting power of the
Corporation's then outstanding securities; (ii) there occurs a
proxy contest or a consent solicitation, or the Corporation is
a party to a merger, consolidation, sale of assets, plan of
liquidation or other reorganization as a consequence of which
members of the Board of Directors in office immediately prior
to such transaction or event constitute less
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than a majority of the Board of Directors thereafter; or (iii)
during any period of two consecutive years, other than as a
result of an event described in clause (ii) of this paragraph,
individuals who at the beginning of such period constituted
the Board of Directors (including for this purpose any new
director whose election or nomination for election by the
Corporation's stockholders was approved by a vote of at least
a majority of the directors then still in office who were
directors at the beginning of such period) cease for any
reason to constitute at least a majority of the Board of
Directors.
For the purposes of this Agreement, the term "Cause"
shall mean and include (i) chronic alcoholism or controlled
substance abuse as determined by a doctor mutually acceptable
to the Corporation and the Optionee, (ii) an act of proven
fraud or dishonesty on the part of the Optionee with respect
to the Corporation or its subsidiaries; (iii) knowing and
material failure by the Optionee to comply with material
applicable laws and regulations relating to the business of
the Corporation or its subsidiaries; (iv) the Optionee's
material and continuing failure to perform (as opposed to
unsatisfactory performance) his duties to the Corporation
except, in each case, where such failure is caused by the
illness or other similar incapacity or disability of the
Optionee; or (v) conviction of a crime involving moral
turpitude or a felony. Prior to the effectiveness of
termination for Cause under subclause (i), (ii), (iii) or (iv)
above, the Optionee shall be given thirty (30) days prior
notice from the Board specifically identifying the reasons
which are alleged to constitute Cause hereunder and an
opportunity to be heard by the Board in the event Optionee
disputes such allegations.
If the Optionee is a party to a written employment
agreement with the Corporation and that employment agreement
provides that Optionee's employment with the Corporation may
be terminated without cause as defined in the employment
agreement, any such termination without cause shall not be
considered a "voluntary resignation" for the purposes of this
Agreement.
Nothing in (a), (b), (c) (d) or (e) shall extend the
time for exercising the Option granted pursuant to this
Agreement beyond the Expiration Date."
3. In all other respect, the terms and provisions of the Original
Option Agreements are hereby reaffirmed by the Corporation and the Optionee.
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IN WITNESS WHEREOF, the parties have executed this Amendment to
Non-Qualified Stock Option Agreements as of the date first above written.
GREY WOLF, INC.
By:_______________________________
Name: XXXXX X. XXXXXXXX
Title: SENIOR VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
OPTIONEE
__________________________________
Name: {EMPNAME}
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