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EXHIBIT 10.14
[EXECUTION COPY]
WARRANT AGREEMENT
THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT FILED UNDER SUCH ACT OR PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER SUCH ACT.
THIS WARRANT MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR ASSIGNED TO ANY
OTHER PERSON OR ENTITY, EXCEPT AS SET FORTH HEREIN.
WARRANT
TO SUBSCRIBE FOR AND PURCHASE COMMON STOCK OF
BAYARD DRILLING TECHNOLOGIES, INC.
VOID AFTER 5:00 P.M., CENTRAL TIME, ON THE DATE THAT IS THE LATER OF
(i) THREE YEARS AFTER THE DATE HEREOF OR (ii) ONE YEAR AFTER AN
INITIAL PUBLIC OFFERING OF THE COMMON STOCK OF BAYARD DRILLING
TECHNOLOGIES, INC., BUT IN NO EVENT LATER THAN JUNE 1, 2003, OR, IF
ANY SUCH DAY IS NOT A BUSINESS DAY, AS DEFINED HEREIN, AT 5:00 P.M.,
CENTRAL TIME ON THE IMMEDIATELY FOLLOWING BUSINESS DAY
THIS CERTIFIES that, for good and valuable consideration, Xxxx
Drilling Company, Inc., an Oklahoma corporation ("Xxxx"), or its registered
assigns, is entitled to subscribe for and purchase from Bayard Drilling
Technologies, Inc., a Delaware corporation (hereinafter the "Company"), at the
price of $20.00 per share (such price, as from time to time to be adjusted as
hereinafter provided, being hereinafter called the "Warrant Price"), at any
time and from time to time after the date hereof but not later than the
Expiration Date (as defined below), up to such number of fully paid,
nonassessable shares of Common Stock, par value $.01 per share, of the Company
("Common Stock") as is specified in the following sentence, subject, however,
to the provisions and upon the terms and conditions hereinafter set forth,
including without limitation the provisions of Section 3 hereof. This Warrant
shall be exercisable for up to 100,000 shares of Common Stock upon issuance,
subject to adjustment as provided herein. "Expiration Date" shall mean 5:00
P.M., Central Time, on the date that is the later of (i) three years after the
date hereof or (ii) one year after an initial public offering of Common Stock,
but in no event later than June 1, 2003, or, if any such day is not a Business
Day, as defined herein, at 5:00 P.M., Central Time on the immediately following
Business Day "Business Day" shall mean a day other than a Saturday, Sunday or
other day on which banks in the State of Texas are authorized by law to remain
closed.
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SECTION 1. EXERCISE OF WARRANT
(a) CASH EXERCISE
This Warrant may be exercised, at any time and from time to time
but not later than the Expiration Date, by the holder hereof (hereinafter
referred to as the "Warrantholder"), in whole or in part (but not as to a
fractional share of Common Stock and in no event for less than 100 shares
(unless less than an aggregate of 100 shares are then purchasable under all
outstanding Warrants held by a Warrantholder)), by the completion of the
subscription form attached hereto and by the surrender of this Warrant
(properly endorsed) at the Company's offices at 0000 Xxxxxxxxx Xxxxxxxxxx,
Xxxxx 000X, Xxxxxxxx Xxxx, Xxxxxxxx 00000 (or at such other location in the
United States as the Company may designate by notice in writing to the
Warrantholder at the address of the Warrantholder appearing on the books of the
Company), and by payment to the Company of the Warrant Price for each share
being purchased in cash or by certified or official bank check.
(b) NET EXERCISE
Notwithstanding anything to the contrary contained in Subsection
1(a), at any time after the completion by the Company of a Qualified IPO (as
defined below), the Warrantholder may elect to exercise this Warrant and
receive shares on a "net exercise" basis in an amount equal to the value of
this Warrant by delivery of the subscription form attached hereto and surrender
of this Warrant at the principal office of the Company, in which event the
Company shall issue to the Warrantholder a number of shares of Common Stock
computed using the following formula:
(P)(Y)(A-B)
X = -----------
A
Where: X= the number of shares of Common Stock to be
issued to the Warrantholder.
P= the portion of the Warrant being exercised
(expressed as a fraction).
Y= the total number of shares of Common Stock
issuable upon exercise of this Warrant.
A= the Current Market Price (as determined
pursuant to Subsection 1(d)) of one share of
Common Stock.
B= Warrant Price.
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"Qualified IPO" means (i) one or more underwritten public offerings of Common
Stock pursuant to one or more effective registration statements filed under the
Securities Act of 1933, as amended, resulting in an aggregate of at least $25
million of net proceeds, after deducting underwriting discounts and commission
and other expenses, to the Company or (ii) any merger, consolidation or other
business combination transaction that results in any equity securities of the
Company being registered under Section 12 of the Securities Exchange Act of
1934, as amended.
(c) PROCEDURE FOR EXERCISE
In the event of any exercise of the rights represented by this
Warrant, a certificate or certificates for the total number of whole shares of
Common Stock so purchased, registered in the name of the Warrantholder, shall
be delivered to the Warrantholder within a reasonable time, not exceeding five
Business Days, after the rights represented by this Warrant shall have been so
exercised; and, unless this Warrant has expired, a new Warrant representing the
number of shares (except a remaining fractional share), if any, with respect to
which this Warrant shall not then have been exercised shall also be issued to
the Warrantholder within such time. With respect to any such exercise, the
Warrantholder shall for all purposes be deemed to have become the holder of
record of the number of shares of Common Stock evidenced by such certificate or
certificates, from the date on which this Warrant was surrendered and, if
exercise is pursuant to Section 1(a), payment of the Warrant Price was made,
irrespective of the date of delivery of such certificate, except that, if the
date of such surrender and payment is a date on which the stock transfer books
of the Company are closed, such person shall be deemed to have become the
holder of such shares at the close of business on the next succeeding date on
which the stock transfer books are open. No fractional shares shall be issued
upon exercise of this Warrant and no payment or adjustment shall be made upon
any exercise on account of any cash dividends on the Common Stock issued upon
such exercise. If any fractional interest in a share of Common Stock would,
except for the provisions of this Section 1, be delivered upon any such
exercise, the Company, in lieu of delivering the fractional share thereof,
shall pay to the Warrantholder an amount in cash equal to the current market
price of such fractional interest, as determined below.
(d) CURRENT MARKET PRICE
For any computation hereunder, the current market price per share
of Common Stock on any date shall be deemed to be the average of the daily
market price per share for the 20 consecutive Trading Days commencing 30
Trading Days before the date in question. "Market Price" is defined as the
closing sale price (or, if no closing sale price is reported, the closing bid
price) of the Common Stock on the principal United States national securities
exchange on which the Common Stock is then listed for trading or, if not so
listed, in the over-the-counter market, as reported by the Nasdaq Stock Market
("Nasdaq"), or, if the Common Stock is not quoted on Nasdaq, as reported by the
National Quotation Bureau Incorporated. If Market Price cannot be established
as described above, market price shall be the fair market value of the Common
Stock as determined in good faith by the Board of Directors whose determination
shall be conclusive. The term "Trading Day" shall mean a day on which the
principal national securities exchange on which the Common Stock is listed or
admitted to trading or Nasdaq is open for the transaction of business.
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SECTION 2. ADJUSTMENT OF NUMBER OF SHARES
Upon each adjustment of the Warrant Price for any stock dividend
or distribution or any subdivision or combination of the outstanding shares of
the Common Stock as provided in Section 3, the Warrantholder shall thereafter
be entitled to purchase, at the Warrant Price resulting from such adjustment,
the number of shares (calculated to the nearest tenth of a share) obtained by
multiplying the Warrant Price in effect immediately prior to such adjustment by
the number of shares purchasable pursuant hereto immediately prior to such
adjustment and dividing the product thereof by the Warrant Price resulting from
such adjustment.
SECTION 3. ADJUSTMENT OF WARRANT PRICE
The Warrant Price and the number and kind of shares issuable
hereunder shall be subject to adjustment from time to time upon the happening
of certain events as provided in this Section 3.
(a) ADJUSTMENTS
(1) If at any time prior to the exercise of this Warrant in
full, the Company shall (A) declare a dividend or make a distribution on the
Common Stock payable in shares of its capital stock (whether shares of Common
Stock or of capital stock of any other class); (B) subdivide, reclassify or
recapitalize its outstanding Common Stock into a greater number of shares; (C)
combine, reclassify or recapitalize its outstanding Common Stock into a smaller
number of shares; or (D) issue any shares of its capital stock by
reclassification of its Common Stock (excluding any such reclassification in
connection with a consolidation or a merger that is subject to Section 3(c)),
the Warrant Price in effect at the time of the record date of such dividend,
distribution, subdivision, combination, reclassification or recapitalization
shall be adjusted so that the Warrantholder shall be entitled to receive the
aggregate number and kind of shares which, if this Warrant had been exercised
in full immediately prior to such event, it would have owned upon such exercise
and been entitled to receive by virtue of such dividend, distribution,
subdivision, combination, reclassification or recapitalization. Any adjustment
required by this Section 3(a) shall be made successively immediately after the
record date, in the case of a dividend or distribution, or the effective date,
in the case of a subdivision, combination, reclassification or
recapitalization, to allow the purchase of such aggregate number and kind of
shares.
(2) If at any time prior to the exercise of this Warrant in
full, the Company shall make a distribution to all holders of the Common Stock
of stock of a subsidiary or securities convertible into or exercisable for such
stock, then in lieu of an adjustment in the Warrant Price or the number of
shares of Common Stock purchasable upon the exercise of this Warrant, each
Warrantholder, upon the exercise hereof at any time after such distribution,
shall be entitled to receive from the Company, such subsidiary or both, as the
Company shall determine, the stock or other securities to which such
Warrantholder would have been entitled if such Warrantholder had exercised this
Warrant immediately prior thereto, all subject to further adjustment as
provided in this Section 3, and the Company shall reserve, for the life of the
Warrant, such securities of such subsidiary or
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other corporation; provided, however, that no adjustment in respect of
dividends or interest on such stock or other securities shall be made during
the term of this Warrant or upon its exercise.
(3) If at any time prior to the expiration of this Warrant in
full, the Company shall issue rights or warrants to all holders of Common Stock
as such entitling them to subscribe for or purchase Common Stock at a price per
share less than the current Market Price per share (calculated pursuant to
Section 1(d) above) on such record date, then, in each such case the number of
shares subject to this Warrant thereafter purchasable upon the exercise of this
Warrant shall be determined by multiplying the number of shares of Common Stock
theretofore purchasable upon exercise of this Warrant by a fraction, of which
the numerator shall be the number of shares of Common Stock outstanding on the
date of issuance of such rights or warrants, plus the number of additional
shares of Common Stock offered for subscription or purchase, and of which the
denominator shall be the number of shares of Common Stock outstanding on the
date of issuance of such rights or warrants plus the number of shares that the
aggregate offering price of the total number of shares of Common Stock so
offered would purchase at such current Market Price. For purposes of this
Section 3(a)(3), the issuance of rights or Warrants to subscribe for or
purchase securities convertible into Common Stock shall be deemed to be the
issuance of rights or Warrants to purchase the Common Stock into which such
securities are convertible at an aggregate offering price equal to the
aggregate offering price of such securities plus the minimum aggregate amount
(if any) payable upon conversion of such securities into Common Stock.
(4) If at any time prior to the exercise of this Warrant in
full, the Company shall distribute to all holders of its Common Stock evidence
of indebtedness of the Company or assets of the Company (excluding cash
dividends or distributions out of earned surplus) or rights or Warrants to
subscribe for securities of the Company (excluding those referred to in
Sections 3(a)(2) or (3) above), then in each case the Warrant Price shall be
adjusted to a price determined by multiplying the Warrant Price in effect
immediately prior to such distribution by a fraction, of which the numerator
shall be the then current Market Price per share of Common Stock (calculated
pursuant to Section 1(d) above) on the record date for determination of
stockholders entitled to receive such distribution, less the then fair value
(as determined by the Board of Directors of the Company, whose determination
shall be conclusive) of the portion of the assets or evidences of indebtedness
so distributed or of such subscription rights or Warrants which are applicable
to one share of Common stock, and of which the denominator shall be the Market
Price per share of Common Stock; provided, however, that if the then current
Market Price per share of Common Stock on the record date for determination, of
stockholders entitled to receive such distribution is less than the then fair
value of the portion of the assets or evidence of indebtedness so distributed
or of such subscription rights or Warrants which are applicable to one share of
Common Stock, the foregoing adjustment of the Warrant Price shall not be made
and in lieu thereof the number of shares purchasable upon exercise of each
Warrant immediately prior to such distribution shall be adjusted so that the
holder of such Warrant shall be entitled to receive upon exercise of such
Warrant the kind and number of assets, evidence of indebtedness, subscription
rights and Warrants (or, in the event of the redemption of such evidence of
indebtedness, subscription rights or Warrants, any cash paid in respect of such
redemption) that such Warrantholder would have owned or have been entitled to
receive after the
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happening in such distribution had such Warrant been exercised immediately
prior to the record date of such distribution.
(5) In the event of any capital reorganization of the Company
(other than an event referred to in Section 3(a)(1)), or in case of the
consolidation of the Company with, the merger of the Company with or into or
the sale of all or substantially all of the properties and assets of the
Company to any other person, and in connection therewith consideration is
payable to holders of Common Stock (or other securities or property purchasable
upon exercise of this Warrant) in exchange therefor, this Warrant shall remain
subject to the terms and conditions set forth in this Warrant and this Warrant
shall, after such capital reorganization, consolidation, merger or sale be
exercisable for the number of shares of stock or other securities or assets to
which a holder of the number of shares of Common Stock purchasable (at the time
of such capital reorganization, reclassification of such Common Stock,
consolidation, merger or sale) upon exercise of this Warrant would have been
entitled if such Warrant had been exercised immediately prior to such capital
reorganization, reclassification of such Common Stock, consolidation, merger or
sale; and in any such case, if necessary, the provisions set forth in this
Warrant with respect to the rights and interests thereafter of the
Warrantholder shall be appropriately adjusted so as to be applicable, as nearly
as may reasonably be, to any shares of stock or other securities or assets
thereafter deliverable on the exercise of this Warrant. The Company shall not
effect any such consolidation, merger or sale, unless prior to or
simultaneously with the consummation thereof, the successor corporation (if
other than the Company) resulting from such consolidation or merger or the
corporation purchasing such assets or the appropriate corporation or entity
shall assume, by written instrument, the obligation to deliver to the
Warrantholder the shares of stock, securities or assets to which the
Warrantholder may be entitled pursuant to this Section 3(a)(5).
(6) Notwithstanding Section 3(a)(5), (i) if the Company merges
or consolidates with, or sells all or substantially all of its property and
assets to, any other person and consideration is payable to holders of Common
Stock in exchange for their Common Stock in connection with such merger,
consolidation or sale which consists solely of cash, or (ii) in the event of
the dissolution, liquidation or winding up of the Company, then the
Warrantholder shall be entitled to receive distributions on the date of such
event on an equal basis with holders of Common Stock (or other securities
issuable upon exercise of this Warrant) as if this Warrant had been exercised
immediately prior to such event, less the Warrant Price. Upon receipt of such
payment, if any, the rights of the Warrantholder shall terminate and cease and
this Warrant shall expire. In case of any such merger, consolidation or sale
of assets, the surviving or acquiring person and, in the event of any
dissolution, liquidation or winding up of the Company, the Company shall
promptly, after receipt of this surrendered Warrant, make payment by delivering
a check in such amount as is appropriate (or, in the case of consideration
other than cash, such other consideration as is appropriate) to such person as
it may be directed in writing by the Warrantholder surrendering this Warrant.
(7) If any question shall at any time arise with respect to
the adjusted number of shares of Common Stock or other securities issuable
upon exercise of this Warrant, such question shall be determined by the
independent firm of certified public accountants of recognized national
standing selected by the Company and reasonably acceptable to the
Warrantholder.
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(8) No adjustment in the Warrant Price shall be required
unless such adjustment would require an increase or decrease of at least one
cent ($.01) in such price; provided, however, that any adjustments which by
reason of this Section 3(a)(8) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All calculations
under this Section 3(a) shall be made to the nearest cent or to the nearest
tenth of a share, as the case may be. Notwithstanding anything in this Section
3(a) to the contrary, the Warrant Price shall not be reduced to less than the
then existing par value of the Common Stock as a result of any adjustment made
hereunder.
(9) In the event that at any time, as the result of any
adjustment made pursuant to this Section 3(a), the Warrantholder thereafter
shall become entitled to receive any securities other than Common Stock,
thereafter the number of such other securities so receivable upon exercise of
any Warrant shall be subject to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions with respect to the
Common Stock contained in Section 3(a).
(b) NO ADJUSTMENT FOR DIVIDENDS
Except as provided in Section 3(a) of this Agreement, no
adjustment in respect of any cash dividends shall be made during the term of
this Warrant or upon the exercise of this Warrant.
(c) FORM OF WARRANT AFTER ADJUSTMENTS
The form of this Warrant need not be changed because of any
adjustments in the Warrant Price or the number or kind of the shares
purchasable pursuant to this Warrant, and Warrants theretofore or thereafter
issued may continue to express the same price and number and kind of shares as
are stated in this Warrant, as initially issued, provided, however, that the
Company may, at any time in its sole discretion (which shall be conclusive),
make any change in the form of Warrant certificate that it may deem appropriate
and that does not affect the substance thereof. Any Warrant certificate
thereafter issued, whether upon registration of transfer of, or in exchange or
substitution for, an outstanding Warrant certificate may be in the form so
changed.
(d) TREATMENT OF WARRANTHOLDER
Prior to due presentment for registration of transfer of this
Warrant, the Company may deem and treat the Warrantholder as the absolute owner
of this Warrant (notwithstanding any notation of ownership or other writing
hereon) for all purposes and shall not be affected by any notice to the
contrary.
(e) NOTICE OF ADJUSTMENT
Upon any adjustment of the Warrant Price, then and in each such
case the Company shall give written notice thereof, by first-class mail,
postage prepaid, addressed to each Warrantholder at the address of such holder
as shown on the books of the Company, which notice shall state the
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Warrant Price resulting from such adjustments setting forth in reasonable
detail the method of calculation and the facts upon which such calculation is
based.
(f) STOCK TO BE RESERVED
The Company will at all times reserve and keep available out of
its authorized Common Stock, solely for the purpose of issuance upon the
exercise of this Warrant as herein provided, such number of shares of Common
Stock as shall then be issuable upon the exercise of this Warrant. The Company
covenants that all shares of Common Stock which shall be so issued, upon full
payment of the Warrant Price therefor or as otherwise set forth herein, shall
be duly and validly issued and fully paid and nonassessable and free from all
taxes, liens and charges with respect to the issue thereof, and, without
limiting the generality of the foregoing, the Company covenants that it will
from time to time take all such action as may be required to ensure that the
par value per share, if any, of the Common Stock is at all times equal to or
less than the effective Warrant Price. The Company will take all such action
as may be necessary to ensure that all such shares of Common Stock may be so
issued without violation of any applicable law or regulation, or of any
requirement of any national securities exchange or automated quotation system
upon which the Common Stock of the Company may be listed or quoted. The
Company will not take any action which results in any adjustment of the Warrant
Price if the total number of shares of Common Stock issued and issuable after
such action upon exercise of this Warrant would exceed the total number of
shares of Common Stock then authorized by the Company's Certificate of
Incorporation. The Company has not granted and will not grant any right of
first refusal with respect to shares issuable upon exercise of this Warrant,
and there are no preemptive rights associated with such shares.
(g) ISSUE TAX
The issuance of certificates for shares of Common Stock upon
exercise of any Warrant shall be made without a charge to the Warrantholder for
any issuance tax in respect thereto provided that the Company shall not be
required to pay any tax which may be payable in respect of any transfer
involved in the issuance and delivery of any certificate in a name other than
that of the Warrantholder.
(h) CLOSING OF BOOKS
The Company will at no time close its transfer books against the
transfer of the shares of Common Stock issued or issuable upon the exercise of
this Warrant in any manner which interferes with the timely exercise of this
Warrant.
(i) DEFINITION OF COMMON STOCK
The shares purchasable pursuant to this Warrant shall include
only securities designated as Common Stock of the Company. As used herein the
term "Common Stock" shall mean and include the Common Stock, par value $.01 per
share, of the Company as authorized on the date hereof, or shares of any class
or classes resulting from any recapitalization or reclassification thereof
which are not limited to any fixed sum or percentage and are not subject to
redemption by the
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Company and in case at any time there shall be more than one such resulting
class, the shares of each class then so issuable shall be substantially in the
proportion which the total number of shares of such class resulting from all
such reclassification bears to the total number of shares of all such classes
resulting from all such reclassification.
(j) TITLE TO STOCK
All shares of the Common Stock delivered upon the exercise of
this Warrant shall be validly issued, fully paid and nonassessable; the
Warrantholder shall receive good and marketable title to the Common Stock, free
and clear of all voting and other trust arrangements, liens, encumbrances,
equities and claims created by the Company whatsoever, other than the Amended
and Restated Stockholders and Voting Agreement, dated April 30, 1997, by and
among the Company, Xxxx, and the other stockholders of the Company that are
signatories thereto (the "Stockholders Agreement").
SECTION 4. NOTICES OF RECORD DATES
In the event of:
(a) any taking by the Company of a record of the holders of
any class of securities for the purpose of determining the holders thereof who
are entitled to receive any dividend or other distribution (other than cash
dividends out of earned surplus), or any right to subscribe for, purchase or
otherwise acquire any shares of stock of any class or any other securities or
property, or to receive any right to sell shares of stock of any class or any
other right; or
(b) any capital reorganization of the Company, any
reclassification or recapitalization of the capital stock of the Company or any
transfer of all or substantially all the assets of the Company to or
consolidation or merger of the Company with or into any other corporation or
entity; or
(c) any voluntary or involuntary dissolution, liquidation or
winding-up of the Company;
then and in each such event the Company will give notice to the Warrantholder
specifying (1) the date on which any such record is to be taken for the purpose
of such dividend, distribution or right and stating the amount and character of
such dividend, distribution or right, and (2) the date on which any such
reorganization, reclassification, recapitalization, transfer, consolidation,
merger, dissolution, liquidation or winding-up is to take place, and the time,
if any is to be fixed, as of which the holders of record of Common Stock will
be entitled to exchange their shares of Common Stock for securities or other
property deliverable upon such reorganization, reclassification,
recapitalization, transfer, consolidation, merger, dissolution, liquidation or
winding-up. Such notice shall be given at least 20 days and not more than 90
days prior to the date therein specified, and such notice shall state that the
action in question or the record date is subject to the effectiveness of a
registration statement under the Securities Act of 1933, as amended (the
"Securities Act") or to a favorable vote of stockholders, if either is
required.
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SECTION 5. NO STOCKHOLDERS RIGHTS OR LIABILITIES
Except as may be provided by the Stockholders Agreement, this
Warrant shall not entitle the Warrantholder to any voting rights or other
rights as a stockholder of the Company. No provision hereof, in the absence of
affirmative action by the Warrantholder to purchase shares of Common Stock, and
no mere enumeration herein of the rights or privileges of the Warrantholder
shall give rise to any liability of such Warrantholder for the Warrant Price or
as a stockholder of the Company, whether such liability is asserted by the
Company or by creditors of the Company.
SECTION 6. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT
In case the certificate or certificates evidencing the Warrants
shall be mutilated, lost, stolen or destroyed, the Company shall, at the
request of the Warrantholder, issue and deliver in exchange and substitution
for and upon cancellation or the mutilated certificate or certificates, or in
lieu of and substitution for the certificate or certificates lost, stolen or
destroyed, a new Warrant certificate or certificates of like tenor and
representing an equivalent right or interest but only upon receipt of evidence
satisfactory to the Company of such loss, theft or destruction of such Warrant
and a bond of indemnity, if requested, also satisfactory in form and amount at
the applicant's cost. Applicants for such substitute Warrant certificate or
certificates shall also comply with such other reasonable regulations and pay
such other reasonable charges as the Company may prescribe.
SECTION 7. NOTICES
All notices, requests and other communications required or
permitted to be given or delivered hereunder shall be in writing, and shall be
delivered, or shall be sent by certified or registered mail or overnight
courier, postage prepaid and addressed, or by facsimile, and if to the
Warrantholder to such Warrantholder at such address or facsimile number as
shall have been furnished to the Company by notice from such Warrantholder and
if to the Company, at 0000 Xxxxxxxxx Xxxxxxxxxx, Xxxxx 000X, Xxxxxxxx Xxxx,
Xxxxxxxx 00000; Attention: President, facsimile number (000) 000-0000 or at
such other address or facsimile number as shall have been furnished to the
Warrantholder by notice from the Company.
SECTION 8. RESTRICTIONS ON TRANSFER
Except as may be permitted by the Stockholders Agreement, this
Warrant may not be sold, transferred, hypothecated or assigned to any other
person or entity other than (i) the respective successors to Xxxx in a merger
or consolidation; (ii) the respective purchasers of all or substantially all of
the assets of Xxxx; or (iii) the Xxxx shareholders in the event Xxxx is
liquidated or dissolved. Xxxx agrees not to make any sale or other disposition
of either the Warrant or the underlying Common Stock except pursuant to a
registration statement which has become effective under the Securities Act,
setting forth the terms of such offering, the underwriting discount and the
commissions and any other pertinent data with respect thereto, unless Xxxx has
provided the Company with an opinion of counsel reasonably acceptable to the
Company that such registration is not required. This Warrant shall bear a
legend setting forth the foregoing restriction.
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SECTION 9. AMENDMENTS AND WAIVERS
This Warrant and any term hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by each of (i)
a majority in interest of the holders of this Warrant and (ii) an authorized
representative of the Company.
SECTION 10. SEVERABILITY
If one or more provisions of this Warrant are held to be
unenforceable under applicable law, such provisions shall be excluded from this
Warrant, and the balance of this Warrant shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
SECTION 11. GOVERNING LAW
This Warrant shall be governed by and construed under the laws of
the State of Delaware without regard to conflict of law principles.
SECTION 12. HEADINGS
The headings in this Warrant are for purposes of reference only
and shall not limit or otherwise affect any of the terms hereof.
SECTION 13. COUNTERPARTS
This Warrant may be executed in any number of counterparts, each
of which shall be deemed an original but all of which together shall constitute
one and the same instrument.
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IN WITNESS WHEREOF, the Company and Xxxx have executed this
Warrant on and as of May 30, 1997.
BAYARD DRILLING TECHNOLOGIES INC.,
a Delaware corporation
By: /s/ XXXXX X. XXXXX
----------------------------------
Xxxxx X. Xxxxx
President
XXXX DRILLING COMPANY, INC.
an Oklahoma corporation
By: /s/ XXXXX XXXXXXX
----------------------------------
Name:
--------------------------------
Title: President
-------------------------------
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SUBSCRIPTION FORM
(To be executed upon exercise of this Warrant)
:
----------------------------
The undersigned hereby irrevocably elects to exercise the right
of purchase represented by the within Warrant for, and to purchase thereunder,
______________ shares of Common Stock, as provided for therein, and either
tenders herewith payment of the purchase price of $________________ in full in
cash or a certified or official bank check in an amount equal to the purchase
price or, if the undersigned elects pursuant to Section 1(b) of the within
Warrant to convert such Warrant into Common Stock on a net issuance basis, the
undersigned exercises the within Warrant by exchange under the terms of Section
1(b).
Please issue a certificate or certificates for such Common Stock
in the name of, and pay any cash for any fractional share to:
Name:
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Address:
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Social Security No:
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Signature:
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If said number of shares shall not be all the shares purchasable
under the within Warrant, a new Warrant is to be issued in the name of the
Warrantholder for the balance remaining of the shares purchasable thereunder
rounded up to the next higher number of shares.
Signature Guaranteed:
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(Signature must be guaranteed by a bank or trust company having an office or
correspondence in the United States or by a member firm of a registered
securities exchange or the National Association of Security Dealers, Inc.)
