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EXHIBIT 10.2
[FORM TO BE USED FOR AWARDS
GRANTED TO PERSONS WITHOUT
EMPLOYMENT AGREEMENTS]
BAYARD DRILLING TECHNOLOGIES, INC.
1997 STOCK OPTION AND STOCK AWARD PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
This Non-Qualified Stock Option Agreement (the "Agreement") is
made and entered into by and between Bayard Drilling Technologies, Inc. (the
"Company") and ______________ (the "Employee") as of __________, 199__ (the
"Date of Grant").
W I T N E S S E T H
WHEREAS, the Company has adopted the 1997 Bayard Drilling
Technologies, Inc. Stock Option and Stock Award Plan (the "Plan") to strengthen
the ability of the Company to attract, motivate and retain employees of
superior capability and to encourage valued employees to have a proprietary
interest in the Company; and
WHEREAS, the committee established pursuant to the Plan (the
"Committee") believes that the granting of the stock option described herein to
the Employee is consistent with the stated purposes for which the Plan was
adopted.
NOW, THEREFORE, in consideration of the mutual covenants and
conditions hereinafter set forth and for other good and valuable consideration,
the Company and the Employee agree as follows:
1. Grant of Option. The Company hereby grants to the Employee
the right and option (the "Option") to purchase an aggregate of ____________
shares (the "Shares") (such number being subject to adjustment as provided in
Paragraph 12 hereof) of the Common Stock, par value $.01 per share, of the
Company (the "Common Stock") on the terms and conditions herein set forth.
This Option may be exercised in whole or in part and from time to time as
hereinafter provided.
2. Purchase Price. The price at which the Employee shall be
entitled to purchase the Common Stock covered by the Option shall be $______
per share.
3. Term of Option. The Option granted hereby shall be and remain
in force and effect during the Option Period. The Option Period begins on the
first date the Option is exercisable, as provided in Paragraph 7. The date on
which the Option Period ends (the "Expiration Date") is the first to occur of
(i) the date that is ____ years from the Date of Grant, (ii) in the case of
termination
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of employment, the date specified in Paragraph 10, or (iii) in the event there
is a Change of Control, as defined in the Plan, the date specified in Paragraph
12(b).
4. Due Cause. For purposes of this Agreement, the term "Due
Cause" shall mean (i) habitual neglect of the Employee's duties or failure by
the Employee to perform or observe any obligation of employment that is not
remedied within 30 days after written notice thereof, (ii) any material breach
of any employment agreement between the Employee and the Company, or (iii) the
conviction of or a plea of guilty or nolo contendere by the Employee to a
felony or misdemeanor involving fraud, embezzlement, theft or dishonesty or
other criminal conduct.
5. Disability. For purposes of this Agreement, the term
"Disability" shall mean the inability or incapacity of the Employee for three
months to perform the essential functions of the Employee's job or position
with the Company, even with reasonable accommodation. Such inability or
incapacity shall be documented to the reasonable satisfaction of the Board by
appropriate correspondence from physicians who are reasonably satisfactory to
the Board.
6. Fair Market Value. For purposes of this Agreement, the term
"Fair Market Value" means, if the Common Stock is publicly traded, the closing
price per share of such Common Stock on the principal stock exchange or
quotation system on which the Common Stock is traded or listed on the Date of
Grant or other specified measuring date, or, if there shall have been no such
price so reported or listed on that date, on the last preceding date on which a
price was so reported or listed. If Common Stock is not publicly traded, then
"Fair Market Value" shall mean the value of a share of Common Stock, as
determined by the Committee (the "Committee") appointed by the Board of
Directors of the Company (the "Board") to administer the Plan, in the
Committee's sole and absolute discretion, at least annually. The Committee may
utilize the services of an independent third party in determining the Fair
Market Value of the Common Stock for this purpose. Any determination of Fair
Market Value made by an independent third party in good faith shall be final,
conclusive and binding on the Company (or its assignees), the transferor and
all other parties.
7. Exercise of Option. The Employee may exercise this Option as
to 20% of the Shares on and after the first anniversary of the Date of Grant,
as to 40% of the Shares on and after the second anniversary of the Date of
Grant, as to 60% of the Shares on and after the third anniversary of the Date
of Grant, as to 80% of the Shares on and after the fourth anniversary of the
Date of Grant, and as to all or any part of the Shares on and after the fifth
anniversary of the Date of Grant, through the Expiration Date described in
Paragraph 3. An Option shall cease to be exercisable as to any Share when the
Employee exercises the Option or when the Option lapses.
8. Method of Exercising Option. Subject to the terms and
conditions of this Agreement, the Option may be exercised by timely delivery to
the Committee of written notice, which notice shall be effective on the date
received by the Company. The notice must state the Employee's election to
exercise the Option, the number of shares with respect to which the election to
exercise has been made, the Social Security number of the Employee, the method
of payment elected (see Paragraph 9 hereof), and the exact name in which the
shares will be registered. Such notice must
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be signed by the Employee and shall be accompanied by payment of the purchase
price of such Shares. If the Option is exercised by a person or persons other
than the Employee pursuant to Paragraph 10(c) hereof, such notice must be
signed by such other person or persons and must be accompanied by proof
acceptable to the Committee of the legal right of such person or persons to
exercise the Option.
9. Method of Payment for the Option.
(a) As a general rule, the full purchase price for the
Shares purchased upon the exercise of the Option (i.e., the number of shares
being purchased multiplied by the price per shares) must be paid in cash. The
Committee may, however, in its discretion, allow the Employee to pay for the
Common Stock (i) in an equivalent acceptable to the Committee, (ii) by
assigning and delivering to the Company shares of Common Stock owned by the
Employee or surrendering another Incentive Award, or (iii) by combination of
cash, Common Stock or Incentive Award equal in value to the purchase price. In
addition, at the request of the Employee and to the extent permitted by
applicable law, the Company may approve an arrangement with a brokerage firm,
under which the brokerage firm, on behalf of the Employee, will pay for shares
of Stock purchased upon the exercise of the Option.
(b) Any Common Stock used or Incentive Award surrendered
to pay all or a part of the purchase price of the Option will be valued, for
purposes of this Agreement, on the exercise date at the Fair Market Value.
Further, such payment must be accompanied by an assignment of such Common Stock
on a duly executed stock power, which is on a form separate from the
certificate(s) for the Common Stock, authorizing the transfer of such shares to
the Company.
10. Termination of Employment. The Option Period will end and the
Option, whether or not then exercisable, will lapse, upon the Employee's
voluntary termination of employment with the Company or if the Company
terminates the Employee's employment for Due Cause.
(a) If the termination is due to the Employee's
retirement, the Employee may continue to exercise Options exercisable
at the time of retirement. The Option Period will end on the earlier
of (i) the date specified in Paragraph 3; (ii) the date which is 90
days following the date of the Employee's retirement; (iii) the date
specified in Paragraph 10(b), or 10(c), as applicable; or (iv) the
date specified in Paragraph 12(b).
(b) In the event of the Employee's Disability, the
Employee may continue to exercise Options exercisable on the date on
which the Disability occurs. The Option Period will end on the
earlier of (i) the date specified in Paragraph 3; (ii) the date which
is 90 days following the date on which the Disability occurs; or (iii)
the date specified in Paragraph 12(b).
(c) In the event of the Employee's death, the Options
exercisable at the time of the Employee's death may be exercised by
the estate or beneficiary of the Employee until the
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earlier of (i) the date specified in Paragraph 3; (ii) the date which
is 90 days following the date of the Employee's death; or (iii) the
date specified in Paragraph 12(b).
(d) If the Company terminates the Employee's employment
for any reason other than Due Cause, then the Employee may continue to
exercise Options exercisable on the date of the Employee's
termination. The Option Period will end on the earlier of (i) the
date specified in Paragraph 3; (ii) the date which is 30 days
following the date of termination; or (iii) the date specified in
Paragraph 12(b).
(e) If, following a Change of Control, the Company
terminates the Employee's employment for any reason other than Due
Cause, or if the Company terminates the Employee's employment as a
result of a Disability, then the Options shall become fully vested and
all restrictions set forth in Paragraph 7 will terminate. The Option
Period will end on the earlier of (i) the date specified in Paragraph
3; (ii) the date which is 30 days following the date of termination;
or (iii) the date specified in Paragraph 12(b).
11. Non-transferability. The Option granted by this Agreement may
only be exercisable during the term of the Option Period provided in Paragraph
3 hereof and, except as provided in the Plan and in Paragraphs 10 and 12
hereof, only by the Employee during his lifetime and while an employee of the
Company. No Option granted by this Option Agreement is transferable by the
Employee other than by will or pursuant to applicable laws of descent and
distribution. The Option and any rights and privileges in connection
therewith, cannot be transferred, assigned, pledged or hypothecated by
operation of law, or otherwise, and is not otherwise subject to execution,
attachment, garnishment or similar process. In the event of such occurrence,
this Agreement will automatically terminate and will thereafter be null and
void.
12. Adjustments in Number of Shares and Option Price; Change of
Control.
(a) Except as provided below, in the event that the
outstanding Common Stock of the Company is increased, decreased, or exchanged
for a different number or kind of shares or other securities, or if additional,
new or different shares or securities are distributed with respect to the
Common Stock through merger, consolidation, sale of all or substantially all of
the assets of the Company, reorganization, recapitalization, stock dividend,
stock split, reverse stock split or other distribution with respect to such
Common Stock, each remaining Share of Common Stock subject to his Option will
be substituted for a like number and kind of shares of the new or replacement
securities without changing the aggregate purchase price of the shares subject
to the Option.
(b) In the event of a Change of Control of the Company
(as such term is defined in the Plan) occurring after the Date of Grant, the
Committee may accelerate the commencement of the Option Period or take such
other actions as are permitted under the Plan, in its sole discretion.
13. Delivery of Shares. No shares of Common Stock shall be
delivered to the Employee upon the exercise of the Option until (i) the
purchase price is paid in full in the manner herein
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provided, if applicable; (ii) all the applicable taxes required to be withheld
have been paid or withheld in full; (iii) the approval of any governmental
authority required in connection with the Option, or the issuance of shares
thereunder has been received by the Company; and (iv) if required by the
Committee, the Employee has delivered to the Committee an "Investment Letter"
in form and content satisfactory to the Company as provided in Paragraph 14
hereof.
14. Securities Act. The Company will not be required to deliver
any shares of Common Stock pursuant to the exercise of all or any part of the
Option if, in the opinion of counsel for the Company, such issuance would
violate the Securities Act of 1933, as amended (the "Securities Act") or any
other applicable federal or state securities laws or regulations. The
Committee may require that the Employee, prior to the issuance of any such
shares pursuant to exercise of the Option sign and deliver to the Company a
written statement ("Investment Letter") stating (i) that the Employee is
purchasing the shares for investment and not with a view to the sale or
distribution thereof; (ii) that the Employee will not sell any shares of Common
Stock that the Employee may then own or thereafter acquire except either (a)
through a broker on a national securities exchange or (b) with the prior
written approval of the Company; and (iii) containing such other terms and
conditions as counsel for the Company may reasonably require to assure
compliance with the Securities Act or other applicable federal or state
securities laws and regulations. Such Investment Letter shall be in form and
content acceptable to the Committee, in its sole discretion.
15. Federal and State Taxes. Upon the exercise of the Option, or
any part thereof, the Employee may incur certain liabilities for federal, state
or local taxes and the Company may be required by law to withhold such taxes
for payment to taxing authorities. Upon determination by the Company of the
amount of taxes required to be withheld, if any, with respect to the Shares to
be issued pursuant to the exercise of the Option, the Employee must either (i)
direct the Company to withhold cash, if applicable, or from the Common Stock to
be issued the number of shares necessary to satisfy the Company's withholding
obligations, based on the Fair Market Value of the shares on the date of
withholding; (ii) deliver to the Company a sufficient number of shares of
Common Stock then owned by the Employee to satisfy the Company's withholding
obligations, based on the Fair Market Value of the shares as of the date of
withholding; or (iii) deliver sufficient cash to the Company to satisfy its
withholding obligations. Authorization of the Employee to the Company to
withhold taxes pursuant to this Paragraph 15 must be in a form and content
acceptable to the Committee. The payment or authorization to withhold taxes by
the Employee shall be completed prior to the delivery of any shares pursuant to
this Agreement. An authorization to withhold taxes pursuant to this provision
will be irrevocable unless and until the tax liability of the Employee has been
fully paid.
16. Company's Right to Purchase Common Stock.
(a) Upon the Employee's termination of employment with
the Company and all Subsidiaries for any reason (including by reason of death
or disability), the Company shall have the right (but not the obligation) to
purchase from the Employee (or the Employee's
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beneficiary or estate) all shares of Common Stock issued hereunder at the Fair
Market Value of the Common Stock.
(b) While and so long as the Common Stock has not been
publicly traded for at least 90 days, any Shares issued upon exercise of this
Option shall be subject to the following right of first purchase:
(a) If the Employee intends to transfer shares of Common
Stock obtained pursuant to this Agreement, the Employee shall give
written notice to the Company of his intention to so transfer. The
notice, in addition to stating the fact of the intention to transfer
shares, shall state (i) the number of shares to be transferred; (ii)
the name, business and residence address of the proposed transferee;
(iii) whether or not the transfer is for a valuable consideration and
(iv) if so, the amount of the consideration and the other terms of the
sale.
(b) Within 30 days of the Company's receipt of the notice
described above, the Company may exercise an option to purchase all or
any portion of the shares of Common Stock proposed to be transferred
for the price and upon the other terms provided in the Agreement. The
Company shall exercise this option by providing the Employee with
written notice of its intent to do so.
(c) If the Company does not exercise its option to
purchase the shares of Common Stock proposed to be transferred, such
shares may be transferred by the Employee in accordance with the
notice provided within 10 days after the expiration of the 30 day
option period granted to the Company. Upon transfer, such shares
shall continue to be bound by any terms and provisions of this
Agreement designated as continuing on transfer.
17. Definitions; Copy of Plan. To the extent not specifically
provided for herein, all capitalized terms used in this Agreement shall have
the same meanings ascribed to them in the Plan. By the execution of this
Agreement, the Employee acknowledges receipt of a copy of the Plan.
18. Administration. This Agreement is subject to the terms and
conditions of the Plan. The Plan will be administered by the Committee in
accordance with terms. The Committee has sole and complete discretion with
respect to all matters reserved to it by the Plan and the decisions of the
majority of the Committee with respect to the Plan and this Agreement shall be
final and binding upon the Employee and the Company. In the event of any
conflict between the terms and conditions of this Agreement and the Plan, the
provisions of the Plan shall control.
19. Continuation of Employment. This Agreement shall not be
construed to confer upon the Employee any right to continue in the employ of
the Company and shall not limit the right of the Company, in its sole
discretion, to terminate the employment of the Employee at any time.
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20. No Right to Stock. No Employee and no beneficiary or other
person claiming under or through such Employee shall have any right, title or
interest in any shares of Common Stock allocated or reserved under the Plan or
subject to this Option, except as to such shares of Common Stock, if any, that
have been issued or transferred to such Employee.
21. Obligation to Exercise. The Employee shall have no obligation
to exercise any Option granted by this Agreement.
22. Notice. Any notice to be given to the Company shall be
addressed to the Company in care of its Secretary at its principal office, and
any notice to be given to the Employee shall be addressed to the Employee at
following address (or such other address as the Employee may hereafter
designate to the Company in writing):
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Any such notice shall be in writing and shall be delivered personally or shall
be sent by first class mail, postage prepaid, to the Company or the Employee,
as applicable.
23. Governing Law. This Agreement shall be interpreted and
administered under the laws of the State of Delaware.
24. Amendments. This Agreement may be amended only by a written
agreement executed by the Company and the Employee. Any such amendment shall
be made only upon the mutual consent of the parties, which consent (of either
party) may be withheld for any reason.
25. Termination. The Company may terminate the Plan at any time;
however, such termination will not modify the terms and conditions of the
Option granted hereunder without the Employee's consent.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed by its officers thereunto duly authorized, and the Employee has
hereunto set his hand as of the day and year first above written.
BAYARD DRILLING TECHNOLOGIES, INC.
By:
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Its:
---------------------------------
EMPLOYEE
-------------------------------------
Date:
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[FORM TO BE USED FOR AWARDS
GRANTED TO PERSONS WITH
EMPLOYMENT AGREEMENTS]
BAYARD DRILLING TECHNOLOGIES, INC.
1997 STOCK OPTION AND STOCK AWARD PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
This Non-Qualified Stock Option Agreement (the "Agreement") is
made and entered into by and between Bayard Drilling Technologies, Inc. (the
"Company") and ______________ (the "Employee") as of __________, 199__ (the
"Date of Grant").
W I T N E S S E T H
WHEREAS, the Company has adopted the 1997 Bayard Drilling
Technologies, Inc. Stock Option and Stock Award Plan (the "Plan") to strengthen
the ability of the Company to attract, motivate and retain employees of
superior capability and to encourage valued employees to have a proprietary
interest in the Company; and
WHEREAS, the committee established pursuant to the Plan (the
"Committee") believes that the granting of the stock option described herein to
the Employee is consistent with the stated purposes for which the Plan was
adopted; and
WHEREAS, the Company and the Employee have entered into that
certain Employment Agreement, dated as of ________________, 1997 (the
"Employment Agreement").
NOW, THEREFORE, in consideration of the mutual covenants and
conditions hereinafter set forth and for other good and valuable consideration,
the Company and the Employee agree as follows:
1. Grant of Option. The Company hereby grants to the Employee
the right and option (the "Option") to purchase an aggregate of ____________
shares (the "Shares") (such number being subject to adjustment as provided in
Paragraph 10 hereof) of the Common Stock, par value $.01 per share, of the
Company (the "Common Stock") on the terms and conditions herein set forth.
This Option may be exercised in whole or in part and from time to time as
hereinafter provided.
2. Purchase Price. The price at which the Employee shall be
entitled to purchase the Common Stock covered by the Option shall be $______
per share.
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3. Term of Option. The Option granted hereby shall be and remain
in force and effect during the Option Period. The Option Period begins on the
first date the Option is exercisable, as provided in Paragraph 5. The date on
which the Option Period ends (the "Expiration Date") is the first to occur of
(i) the date that is ____ years from the Date of Grant, (ii) in the case of
termination of employment, the date specified in Paragraph 8, or (iii) in the
event there is a Change of Control, as defined in the Plan, the date specified
in Paragraph 10(b).
4. Fair Market Value. For purposes of this Agreement, the term
"Fair Market Value" means, if the Common Stock is publicly traded, the closing
price per share of such Common Stock on the principal stock exchange or
quotation system on which the Common Stock is traded or listed on the Date of
Grant or other specified measuring date, or, if there shall have been no such
price so reported or listed on that date, on the last preceding date on which a
price was so reported or listed. If Common Stock is not publicly traded, then
"Fair Market Value" shall mean the value of a share of Common Stock, as
determined by the Committee (the "Committee") appointed by the Board of
Directors of the Company (the "Board") to administer the Plan, in the
Committee's sole and absolute discretion, at least annually. The Committee may
utilize the services of an independent third party in determining the Fair
Market Value of the Common Stock for this purpose. Any determination of Fair
Market Value made by an independent third party in good faith shall be final,
conclusive and binding on the Company (or its assignees), the transferor and
all other parties.
5. Exercise of Option. The Employee may exercise this Option as
to 20% of the Shares on and after the first anniversary of the Date of Grant,
as to 40% of the Shares on and after the second anniversary of the Date of
Grant, as to 60% of the Shares on and after the third anniversary of the Date
of Grant, as to 80% of the Shares on and after the fourth anniversary of the
Date of Grant, and as to all or any part of the Shares on and after the fifth
anniversary of the Date of Grant, through the Expiration Date described in
Paragraph 3. An Option shall cease to be exercisable as to any Share when the
Employee exercises the Option or when the Option lapses.
6. Method of Exercising Option. Subject to the terms and
conditions of this Agreement, the Option may be exercised by timely delivery to
the Committee of written notice, which notice shall be effective on the date
received by the Company. The notice must state the Employee's election to
exercise the Option, the number of shares with respect to which the election to
exercise has been made, the Social Security number of the Employee, the method
of payment elected (see Paragraph 7 hereof), and the exact name in which the
shares will be registered. Such notice must be signed by the Employee and
shall be accompanied by payment of the purchase price of such Shares. If the
Option is exercised by a person or persons other than the Employee pursuant to
Paragraph 8 hereof, such notice must be signed by such other person or persons
and must be accompanied by proof acceptable to the Committee of the legal right
of such person or persons to exercise the Option.
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7. Method of Payment for the Option.
(a) As a general rule, the full purchase price for the
Shares purchased upon the exercise of the Option (i.e., the number of shares
being purchased multiplied by the price per shares) must be paid in cash. The
Committee may, however, in its discretion, allow the Employee to pay for the
Common Stock (i) in an equivalent acceptable to the Committee, (ii) by
assigning and delivering to the Company shares of Common Stock owned by the
Employee or surrendering another Incentive Award, or (iii) by combination of
cash, Common Stock or Incentive Award equal in value to the purchase price. In
addition, at the request of the Employee and to the extent permitted by
applicable law, the Company may approve an arrangement with a brokerage firm,
under which the brokerage firm, on behalf of the Employee, will pay for shares
of Stock purchased upon the exercise of the Option.
(b) Any Common Stock used or Incentive Award surrendered
to pay all or a part of the purchase price of the Option will be valued, for
purposes of this Agreement, on the exercise date at the Fair Market Value.
Further, such payment must be accompanied by an assignment of such Common Stock
on a duly executed stock power, which is on a form separate from the
certificate(s) for the Common Stock, authorizing the transfer of such shares to
the Company.
8. Termination of Employment. The Option Period will end and the
Option, whether or not then exercisable, will lapse, upon the Employee's
voluntary termination of employment with the Company or if the Company
terminates the Employee's employment for Due Cause (as such term is defined in
the Employment Agreement).
(a) If the termination is due to the Employee's
retirement, the Employee may continue to exercise Options exercisable
at the time of retirement. The Option Period will end on the earlier
of (i) the date specified in Paragraph 3; (ii) the date which is 90
days following the date of the Employee's retirement; (iii) the date
specified in Paragraph 8(b) or 8(c), as applicable; or (iv) the date
specified in Paragraph 10(b).
(b) In the event of the Employee's Disability (as such
term is defined in the Employment Agreement), the Employee may
continue to exercise Options exercisable on the date on which the
Disability occurs (as defined in the Employment Agreement). The
Option Period will end on the earlier of (i) the date specified in
Paragraph 3; (ii) the date which is 90 days following the date on
which the Disability occurs (as defined in the Employment Agreement);
or (iii) the date specified in Paragraph 10(b).
(c) In the event of the Employee's death, the Options
exercisable at the time of the Employee's death may be exercised by
the estate or beneficiary of the Employee until the earlier of (i) the
date specified in Paragraph 3; (ii) the date which is 90 days
following the date of the Employee's death; or (iii) the date
specified in Paragraph 10(b).
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(d) If the Company terminates the Employee's employment
for any reason other than Due Cause, as a result of a Change of
Control, or as a result of a Disability, then the Options shall become
vested and all restrictions set forth in Section 5 will terminate.
The Option Period will end on the earlier of (i) the date specified in
Paragraph 3; (ii) the date which is 30 days following the date of
termination; or (iii) the date specified in Paragraph 10(b).
9. Non-transferability. The Option granted by this Agreement may
only be exercisable during the term of the Option Period provided in Paragraph
3 hereof and, except as provided in Paragraphs 8 and 10, only by the Employee
during his lifetime and while an employee of the Company. No Option granted by
this Option Agreement is transferable by the Employee other than by will or
pursuant to applicable laws of descent and distribution. The Option and any
rights and privileges in connection therewith, cannot be transferred, assigned,
pledged or hypothecated by operation of law, or otherwise, and is not otherwise
subject to execution, attachment, garnishment or similar process. In the event
of such occurrence, this Agreement will automatically terminate and will
thereafter be null and void.
10. Adjustments in Number of Shares and Option Price; Change of
Control.
(a) Except as provided below, in the event that the
outstanding Common Stock of the Company is increased, decreased, or exchanged
for a different number or kind of shares or other securities, or if additional,
new or different shares or securities are distributed with respect to the
Common Stock through merger, consolidation, sale of all or substantially all of
the assets of the Company, reorganization, recapitalization, stock dividend,
stock split, reverse stock split or other distribution with respect to such
Common Stock, each remaining share of Common Stock subject to his Option will
be substituted for a like number and kind of shares of the new or replacement
securities without changing the aggregate purchase price of the shares subject
to the Option.
(b) In the event of a Change of Control of the Company
(as such term is defined in the Plan) occurring after the Date of Grant, the
Committee may accelerate the commencement of the Option Period or take such
other actions as are permitted under the Plan, in its sole discretion.
11. Delivery of Shares. No shares of Common Stock shall be
delivered to the Employee upon the exercise of the Option until (i) the
purchase price is paid in full in the manner herein provided, if applicable;
(ii) all the applicable taxes required to be withheld have been paid or
withheld in full; (iii) the approval of any governmental authority required in
connection with the Option, or the issuance of shares thereunder has been
received by the Company; and (iv) if required by the Committee, the Employee
has delivered to the Committee an "Investment Letter" in form and content
satisfactory to the Company as provided in paragraph 12 hereof.
12. Securities Act. The Company will not be required to deliver
any shares of Common Stock pursuant to the exercise of all or any part of the
Option if, in the opinion of counsel for the Company, such issuance would
violate the Securities Act of 1933, as amended (the "Securities Act")
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or any other applicable federal or state securities laws or regulations. The
Committee may require that the Employee, prior to the issuance of any such
shares pursuant to exercise of the Option sign and deliver to the Company a
written statement ("Investment Letter") stating (i) that the Employee is
purchasing the shares for investment and not with a view to the sale or
distribution thereof; (ii) that the Employee will not sell any shares of Common
Stock that the Employee may then own or thereafter acquire except either (a)
through a broker on a national securities exchange or (b) with the prior
written approval of the Company; and (iii) containing such other terms and
conditions as counsel for the Company may reasonably require to assure
compliance with the Securities Act or other applicable federal or state
securities laws and regulations. Such Investment Letter shall be in form and
content acceptable to the Committee, in its sole discretion.
13. Federal and State Taxes. Upon the exercise of the Option, or
any part thereof, the Employee may incur certain liabilities for federal, state
or local taxes and the Company may be required by law to withhold such taxes
for payment to taxing authorities. Upon determination by the Company of the
amount of taxes required to be withheld, if any, with respect to the Shares to
be issued pursuant to the exercise of the Option, the Employee must either (i)
direct the Company to withhold cash, if applicable, or from the Common Stock to
be issued the number of shares necessary to satisfy the Company's withholding
obligations, based on the Fair Market Value of the shares on the date of
withholding; (ii) deliver to the Company a sufficient number of shares of
Common Stock then owned by the Employee to satisfy the Company's withholding
obligations, based on the Fair Market Value of the shares as of the date of
withholding; or (iii) deliver sufficient cash to the Company to satisfy its
withholding obligations. Authorization of the Employee to the Company to
withhold taxes pursuant to this paragraph 15 must be in a form and content
acceptable to the Committee. The payment or authorization to withhold taxes by
the Employee shall be completed prior to the delivery of any shares pursuant to
this Agreement. An authorization to withhold taxes pursuant to this provision
will be irrevocable unless and until the tax liability of the Employee has been
fully paid.
14. Company's Right to Purchase Common Stock.
(a) Upon the Employee's termination of employment with
the Company and all Subsidiaries for any reason (including by reason of death
or disability), the Company shall have the right (but not the obligation) to
purchase from the Employee (or the Employee's beneficiary or estate) all shares
of Common Stock issued hereunder at the Fair Market Value of the Common Stock.
(b) While and so long as the Common Stock has not been
publicly traded for at least 90 days, any Shares issued upon exercise of this
Option shall be subject to the following right of first purchase:
(a) If the Employee intends to transfer shares of Common
Stock obtained pursuant to this Agreement, the Employee shall give
written notice to the Company of his intention to so transfer. The
notice, in addition to stating the fact of the intention to
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transfer shares, shall state (i) the number of shares to be
transferred; (ii) the name, business and residence address of the
proposed transferee; (iii) whether or not the transfer is for a
valuable consideration and (iv) if so, the amount of the consideration
and the other terms of the sale.
(b) Within 30 days of the Company's receipt of the notice
described above, the Company may exercise an option to purchase all or
any portion of the shares of Common Stock proposed to be transferred
for the price and upon the other terms provided in the Agreement. The
Company shall exercise this option by providing the Employee with
written notice of its intent to do so.
(c) If the Company does not exercise its option to
purchase the shares of Common Stock proposed to be transferred, such
shares may be transferred by the Employee in accordance with the
notice provided within 10 days after the expiration of the 30 day
option period granted to the Company. Upon transfer, such shares
shall continue to be bound by any terms and provisions of this
Agreement designated as continuing on transfer.
15. Definitions; Copy of Plan. To the extent not specifically
provided for herein, all capitalized terms used in this Agreement shall have
the same meanings ascribed to them in the Plan. By the execution of this
Agreement, the Employee acknowledges receipt of a copy of the Plan.
16. Administration. This Agreement is subject to the terms and
conditions of the Plan. The Plan will be administered by the Committee in
accordance with terms. The Committee has sole and complete discretion with
respect to all matters reserved to it by the Plan and the decisions of the
majority of the Committee with respect to the Plan and this Agreement shall be
final and binding upon the Employee and the Company. In the event of any
conflict between the terms and conditions of this Agreement and the Plan, the
provisions of the Plan shall control.
17. Continuation of Employment. This Agreement shall not be
construed to confer upon the Employee any right to continue in the employ of
the Company and shall not limit the right of the Company, in its sole
discretion, to terminate the employment of the Employee at any time.
18. No Right to Stock. No Employee and no beneficiary or other
person claiming under or through such Employee shall have any right, title or
interest in any shares of Common Stock allocated or reserved under the Plan or
subject to this Option, except as to such shares of Common Stock, if any, that
have been issued or transferred to such Employee.
19. Obligation to Exercise. The Employee shall have no obligation
to exercise any Option granted by this Agreement.
20. Notice. Any notice to be given to the Company shall be
addressed to the Company in care of its Secretary at its principal office, and
any notice to be given to the Employee shall be
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addressed to the Employee at following address (or such other address as the
Employee may hereafter designate to the Company in writing):
--------------------------
--------------------------
--------------------------
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Any such notice shall be in writing and shall be delivered personally or shall
be sent by first class mail, postage prepaid, to the Company or the Employee,
as applicable.
21. Governing Law. This Agreement shall be interpreted and
administered under the laws of the State of Delaware.
22. Amendments. This Agreement may be amended only by a written
agreement executed by the Company and the Employee. Any such amendment shall
be made only upon the mutual consent of the parties, which consent (of either
party) may be withheld for any reason.
23. Termination. The Company may terminate the Plan at any time;
however, such termination will not modify the terms and conditions of the
Option granted hereunder without the Employee's consent.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed by its officers thereunto duly authorized, and the Employee has
hereunto set his hand as of the day and year first above written.
BAYARD DRILLING TECHNOLOGIES, INC.
By:
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Its:
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EMPLOYEE
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Xxxxx X. Xxxxx
Date:
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