EXHIBIT 10.22
GREY WOLF, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT (this "Agreement") made as of
February 13, 2002, by and between GREY WOLF, INC., a corporation organized under
the laws of the State of Texas (the "Corporation"), and an individual (the
"Optionee");
WITNESSETH:
WHEREAS, the Corporation is desirous of providing incentive to the
Optionee to further the business of the Corporation and the Corporation has
agreed to grant the Optionee options to purchase shares of common stock, $0.10
par value ("Common Stock"), of the Corporation; and
WHEREAS, by granting the Optionee options to purchase shares of Common
Stock pursuant to the terms of this Agreement, the Corporation intends to carry
out the purposes set forth in the 1996 Employee Stock Option Plan of the
Corporation (the "Plan") adopted by the Board of Directors of the Corporation
(the "Board of Directors") effective July 29, 1996, the shareholders of the
Corporation effective as of August 27, 1996, and amended by the shareholders of
the corporation on May 4, 1999; and
WHEREAS, the Corporation and the Optionee desire to set forth the terms
and conditions of such options to purchase Common Stock;
NOW, THEREFORE, in consideration of the mutual promises contained
herein, and other good and valuable consideration, the receipt, adequacy and
sufficiency of which are hereby acknowledged, the parties hereto do hereby agree
as follows:
1. Grant of Option. Subject to the terms and conditions hereinafter set
forth, the Corporation hereby grants to the Optionee a non-qualified option (the
"Option") to purchase all or any part of an aggregate number of 50,000 shares of
Common Stock (such shares, as increased or decreased in accordance with Section
9 hereof, being referred to hereinafter as the "Option Shares") at an exercise
price of $2.84 per share (hereinafter the "Exercise Price").
2. Exercise Period. The Option shall be exercisable by Optionee as to
thirty-three percent (33%) of the Option Shares one (1) year after the date of
this Agreement, as to an additional thirty-three percent (33%) of the Option
Shares two (2) years after the date of this Agreement and, as to an additional
thirty-four percent (34%) of the Option Shares three (3) years after the date of
this Agreement. The Option shall expire and terminate as to any Option Shares
not purchased by the Optionee on or before the tenth anniversary of the date of
this Agreement (the "Expiration Date"), subject to earlier termination as set
forth herein. Notwithstanding any other provision of this Agreement to the
contrary, the Option shall be immediately exercisable by Optionee as to one
hundred percent (100%) of the Option Shares as provided in Sections 9(c), 9(f)
and 11(c) of this Agreement.
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3. Method of Exercising the Option. The Option shall be exercised by
the Optionee delivering to the Corporation (i) written notice from the Optionee
stating that the Optionee is exercising the Option and specifying the number of
Option Shares that the Optionee is entitled to purchase (the "Notice"), which
shall be in form and content identical to Annex I hereto and (ii) the aggregate
Exercise Price (the "Payment") for the number of Option Shares that the Optionee
is entitled to purchase, which Exercise Price must be in the form of (a) cash or
a cashier's or certified check payable to the order of the Corporation, or (b)
the tender to the Corporation of such number of shares of Common Stock owned by
the Optionee having an aggregate fair market value as of the date of exercise
that is not greater than the total Exercise Price for the shares of Common Stock
with respect to which the Option is being exercised and by paying in cash or
cashiers check payable to the Corporation the remaining amount of the Exercise
Price.
4. Transferability of Option. The Option shall not be transferable or
assignable, in whole or in part, and except as otherwise provided in Section 11
of this Agreement or by will or the laws of descent or distribution. The Option
shall be exercisable (i) only by the Optionee during his lifetime, or (ii) in
the event of his death, by his heirs, representatives, distributees, or legatees
in accordance with his will or the laws of descent and distribution (but only to
the extent that the Option would be exercisable by the Optionee under this
Agreement).
5. Payment of Taxes Upon Exercise. The Optionee understands and
acknowledges that under currently applicable law, the Optionee may be required
to include in the Optionee's taxable income, at the time of exercise of the
Option, the amount by which the value of the Option Shares purchased (the
"Exercise Shares") exceeds the Exercise Price paid. The Optionee hereby
authorizes the Corporation to withhold Exercise Shares of a value equivalent to
the amount of tax required to be withheld by the Corporation out of any taxable
income derived by the Optionee upon exercise of the Option; provided, however,
that the Optionee may, in the alternative, in order to satisfy such withholding
requirement, deliver to the Corporation cash or other shares of Common Stock
owned by the Optionee.
6. Investment Representation. The Optionee represents that the Option
Shares available for purchase by the Optionee under this Agreement will be
acquired only for investment and not with a view toward resale or distribution.
7. Securities Law Requirements; Legends. The Optionee agrees and
understands that the Option Shares may be restricted securities as defined in
Rule 144 promulgated under the Securities Act of 1933, as amended (the
"Securities Act"), and may not be sold, assigned or transferred, unless the
sale, assignment or transfer of such shares is registered under the Securities
Act and applicable blue sky laws, as now in effect or hereafter amended, or
there is furnished an opinion of counsel in form and substance satisfactory to
the Corporation from counsel acceptable to the Corporation that such
registrations are not required. The Optionee further understands and agrees
that, unless issued pursuant to an effective registration statement under the
Securities Act, the following legend shall be set forth on each certificate
representing Option Shares:
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"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR UNDER THE BLUE SKY LAWS OF ANY
STATE, AND MAY NOT BE SOLD, ASSIGNED OR TRANSFERRED EXCEPT UPON SUCH
REGISTRATION OR UPON RECEIPT BY THE CORPORATION OF AN OPINION OF
COUNSEL FOR THE CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED FOR
SUCH SALE, ASSIGNMENT OR TRANSFER."
In addition, the following legend shall be placed on each certificate
representing Option Shares:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE GOVERNED BY THE TERMS
OF THE 1996 EMPLOYEE STOCK OPTION PLAN OF THE CORPORATION, DATED JULY
29, 1996, WHICH IS ON FILE AT THE PRINCIPAL OFFICE OF THE CORPORATION
AND A COPY OF WHICH WILL BE PROVIDED FOR INSPECTION UPON WRITTEN
REQUEST."
8. No Rights as Shareholder. The Optionee shall not have any rights as
a shareholder with respect to any of the Option Shares until the date of
issuance by the Corporation to the Optionee of a stock certificate representing
such Option Shares. Except as otherwise provided in Section 9 hereof, the
Optionee shall not be entitled to any dividends, cash or otherwise, or any
adjustment of the Option Shares for such dividends, if the record date therefor
is prior to the date of issuance of such stock certificate. Upon valid exercise
of the Option by the Optionee, the Corporation agrees to cause a valid stock
certificate for the number of Option Shares then purchased to be issued and
delivered to the Optionee within seven (7) business days thereafter.
9. Corporate Proceedings of the Corporation.
(a) The existence of the Option shall not affect in any way
the right or power of the Corporation or its officers, directors and
shareholders, as the case may be, to (i) make or authorize any
adjustments, recapitalizations, reorganizations or other changes in the
capital structure or business of the Corporation, (ii) participate in
any merger or consolidation of the Corporation, (iii) issue any Common
Stock, bonds, debentures, preferred or prior preference stock or any
other securities affecting the Common Stock or the rights of holders
thereof, (iv) dissolve or liquidate the Corporation, (v) sell or
transfer all or any part of the assets or business of the Corporation,
or (vi) perform any other corporate act or proceedings, whether of a
similar character or otherwise.
(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
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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.
(d) If, while the Option is outstanding, the Corporation shall
effect a subdivision or consolidation of the shares of Common Stock or
other capital readjustment, the payment of a common stock dividend, or
other increase or reduction of the number of shares of Common Stock
outstanding, without receiving compensation therefor in money, services
or property, then (i) in the event of an increase in the number of
shares of Common Stock outstanding, the number of Option Shares shall
be proportionately increased, and the per share Exercise Price shall be
proportionately reduced, and (ii) in the event of a reduction in the
number of shares of Common Stock outstanding, the number of Option
Shares shall be proportionately reduced, and the per share Exercise
Price shall be proportionately increased. No fractional share of Common
Stock shall be issued upon any such exercise and the Exercise Price
shall be appropriately reduced on account of any fractional share not
issued.
(e) The issuance by the Corporation of shares of stock of any
class of securities convertible into shares of stock of any class,
including Common Stock, for cash, property, labor or services rendered,
either upon direct sale or upon the exercise of rights, options, or
warrants to subscribe therefor, or upon conversion of shares or
obligations of the Corporation convertible into such shares or other
securities, shall not affect, and no adjustment by reason thereof shall
be made with respect to, the number of Option Shares or the Exercise
Price.
(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 to 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
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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 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.
10. Registration Rights. The Optionee shall have no registration rights
with respect to the Option Shares.
11. Termination. Except as otherwise provided in this Section 11, if
the Optionee for any reason whatsoever ceases to serve as a director of the
Corporation, and prior to such cessation, the Optionee was a director at all
times from the date of the granting of the Option until the date of such
cessation, the Option shall be exercisable by the Optionee (whether previously
exercisable or not) at any time on or before the Expiration Date.
Notwithstanding the foregoing:
(a) If the Optionee's service as a director of the Corporation
is terminated for Cause (as defined below), the Option will terminate
as to all of the unexercised Option Shares on the thirtieth day
following such termination, during which thirty (30) days the Optionee
may exercise the Option as to the Option Shares exercisable on or prior
to the date of such termination for Cause; provided, however, no
unvested Option shall vest during such thirty (30) day period; and
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(b) If the Optionee's service as a director of the Corporation
is terminated as a result of a voluntary resignation, failure to stand
for reelection or failure to be reelected by a vote of the shareholders
of the Corporation at an annual or special meeting of such
shareholders, the Optionee may exercise the Option as to all of the
Option Shares as provided above in this Section 11; provided that no
unvested Option shall vest as a result of such termination or
thereafter.
(c) Notwithstanding the provisions of Section 11(b) above, 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 two (2) years after the date a Change of
Control of the Corporation shall be deemed to have occurred, Optionee's
service as a director of the Corporation is terminated for any reason
other than 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 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 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.
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Nothing in (a), (b) or (c) shall extend the time for
exercising the Option granted pursuant to the Original Option
Agreements beyond the Expiration Date.
12. Disposition of Stock After Exercise of Option. Notwithstanding any
other provision of this Agreement to the contrary, in consideration of the
granting of the Option, the Optionee agrees not to dispose of any Option Shares
without the prior approval of the Corporation unless such shares have been
registered under the Securities Act.
13. Notices. All notices, demands, requests and other communications
required or permitted hereunder shall be in writing and shall be deemed to be
delivered when actually received through U.S. Express Mail or any private
express service (as evidenced by a written receipt), or, if earlier, and
regardless of whether actually received (except where receipt is specified in
this Agreement), four (4) days following deposit in a regularly maintained
receptacle for the United States mail, registered or certified, return receipt
requested, postage fully prepaid, addressed to the addressee at its address set
forth below or at such other address as such party may have specified
theretofore by notice delivered in accordance with this Section:
If to the Corporation: GREY WOLF, Inc.
00000 Xxxxxxxx Xxx., Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attn: President
If to Optionee:
14. Transferability; Binding Effect. The Option shall be transferable
only as set forth in Section 4. Subject to the foregoing, all covenants, terms,
agreements and conditions of this Agreement shall be binding upon, inure to the
benefit of, and be enforceable by, the Corporation and the Optionee and their
respective successors and assigns.
15. Entire Agreement. This Agreement embodies the entire agreement and
understanding between the Corporation and the Optionee relating to the subject
matter hereof.
16. Governing Law. This Agreement shall be governed by the laws of the
State of Texas.
17. Captions. The section and paragraph headings in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
19. Counterparts. This Agreement may be executed in multiple original
counterparts, each of which shall be deemed an original, but all of which
together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been executed and delivered as
of the date first written above.
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CORPORATION:
GREY WOLF, INC.
By:
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Xxxxx X. Xxxxxxxx
Senior Vice President and
Chief Financial Officer
OPTIONEE:
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