NON-QUALIFIED OPTION AGREEMENT
Exhibit 4.5
This
Agreement is dated ____ __, 20__
BETWEEN:
Vantage
Drilling Company, an exempted company existing under the laws of the Cayman
Islands (hereinafter called the "Corporation"),
-
and -
, an
employee of the Corporation residing at _________, (hereinafter called the
"Participant")
WHEREAS
the Participant is an employee of the Corporation or of a subsidiary of the
Corporation and has been designated by the Corporation as eligible to
participate in the Vantage Drilling Company 2007 Long Term Incentive
Compensation Plan (the "Plan");
AND
WHEREAS the Corporation desires to grant to the Participant options to purchase
ordinary shares of the Corporation (the "Shares") in accordance with the terms
of the Plan;
NOW
THEREFORE THIS AGREEMENT WITNESSETH that the parties hereto agree as
follows:
1.
The Corporation hereby grants to the
Participant irrevocable options
(the "Options") to purchase Shares at a
price of $ per share, subject to the terms and conditions set
forth herein.
2.
The Options expire and terminate at 5:00 p.m. (Houston time) on the
day (the "Expiry Date") that is the earlier of (i) ____ __, 20__ and (ii) the
dates determined by Sections 6, 7 and 8 below.
3.
The Shares optioned under this Agreement shall vest
according to the following schedule:
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Vesting
Date
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Number
of Vested Options
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__, 20__
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____
__, 20__
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____
__, 20__
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____
__, 20__
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4.
The Participant (or his legal or personal representative) may exercise the
Options by delivering to the Corporation, at its principal office in Houston,
Texas:
(a) a
written notice ("Notice") expressing the intention to exercise the Options and
specifying the number of Shares in respect of which the Options are
exercised;
(b) a
cash payment, check or bank draft, representing the full purchase price of the
Shares in respect of which the Options are exercised; and
(c) in
the event that the Options are exercised in accordance with this Agreement by
persons other than the Participant, proof satisfactory to the Corporation of the
right of such persons to exercise the Options.
5.
Upon the exercise of the Options as aforesaid, the Corporation
shall employ its reasonable efforts to forthwith deliver, or cause the registrar
and transfer agent of the Shares to deliver, to the Participant (or his legal,
personal representative) or to the order thereof, a certificate representing the
aggregate number of fully paid and non assessable Shares as the Participant (or
his legal, personal representative) shall have then paid for.
6.
Subject to any express resolution passed by the board of
directors of the Corporation (the "Board") with respect to an Option, if the
Participant who is an officer, employee (part-time or full-time), director or
Consultant of the Corporation ceases to be an officer, employee (part-time or
full-time), director or Consultant of the Corporation such that the Participant
holds none of such positions with the Corporation (in each case, the
"Departure") and does not continue in at least one of such capacities, each
Option held by the Participant will terminate and be deemed to have been
terminated:
(a) if
the reason for Departure is resignation or termination without cause, and the
Departure is in respect of a director or officer, as applicable, at 4:00 p.m.
(Houston time) on the earlier of: (i) the expiry date of the Option; and (ii)
the date that is 30 days after the date of Departure;
(b) if
the reason for Departure is resignation or termination without cause, and the
Departure is in respect of an employee (part-time or full-time), at 4:00 p.m.
(Houston time) on the earlier of: (i) the expiry date of the Option; and (ii)
the date that is 30 days after the date of Departure;
(c) if
the reason for Departure is resignation or termination without cause, and the
Departure is in respect of a Consultant, in accordance with the terms of the
consulting agreement entered into between the Corporation or the Subsidiary and
the Consultant, or, if not expressly indicated in such consulting agreement, at
4:00 p.m. (Houston time) on the earlier of: (i) the expiry date of the Option;
and (ii) the date that is 30 days after the date of Departure;
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(d) if
the reason for Departure is death, permanent disability or normal retirement of
the Participant, at 4:00 p.m. (Houston time) on the earlier of: (i) the expiry
date of the Option; and (ii) the date that is 30 days after the date of
Departure; and
(e) if
the reason for Departure is termination for cause, at 12:01 a.m. (Houston time)
on the date of Departure;
provided
that in the circumstances described in clauses (a), (b), (c) and (d) above, the
Option may be exercised or surrendered during the respective periods only to the
same extent, in the same manner, and subject to the same restrictions and
limitations that the Participant was entitled to exercise or surrender the
Option as at the date of Departure. Notwithstanding anything else
contained herein, no Option shall vest following the date of Departure of the
Participant.
7.
In the event of a Participant's death or permanent disability,
any Option held by the Participant at the time of his death or permanent
disability may be exercised or surrendered only:
(a) by
the person to whom the Participant's rights under the Option shall pass by the
Participant's legal will or pursuant to applicable law; and
(b) to
the same extent, in the same manner and subject to the same restrictions and
limitations that the Participant was entitled to exercise or surrender the
Option as at the date of death or permanent disability.
8.
The Participant acknowledges and agrees that neither the
selection of him as a Participant under the Plan nor the granting of the Options
hereunder shall: (i) confer upon him any right to continue as a director,
officer, employee or Consultant of the Corporation or any of its subsidiaries,
as the case may be, or (ii) be construed as a guarantee that the Participant
will continue as a director, officer, employee or Consultant of the Corporation,
as the case may be. The Participant further acknowledges and agrees
that this Agreement and the Options granted hereby shall in no way constitute
the basis for a claim for damages by the Participant against the Corporation in
the event of the termination of the employment of the Participant with the
Corporation for any reason whatsoever, including the Participant's wrongful
dismissal, and the Participant hereby releases and forever discharges the
Corporation from all claims and rights of action for damages whatsoever based
upon or arising out of this Agreement or the Options.
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9.
The Participant shall not have any of
the rights or privileges of a shareholder of the Corporation in respect of any
Shares issuable upon exercise of the Options until such Shares have been paid
for in full and issued to the Participant.
10. The
number of Shares deliverable upon the exercise of the Options shall be increased
or decreased proportionately in the event of the subdivision or consolidation of
the outstanding Shares of the Corporation prior to the Expiry Date, without any
change in the total price applicable to the unexercised portion of the Options,
but with a corresponding adjustment in the price for each Share covered by the
Options. In case the Corporation is reorganized or merged or
consolidated or amalgamated with another corporation, appropriate provisions
shall be made for the continuance of the Options and to prevent their dilution
or enlargement. Adjustments under this Section 10 shall be made by
the Board (or by such committee or persons as may be delegated such authority
pursuant to the Plan), whose determination as to what adjustments shall be made,
and the extent thereof, shall be final, binding and conclusive. No
fractional Shares shall be issued on any such adjustment.
11. The
Options and all benefits and rights accruing to the Participant hereunder shall
not be transferable or assignable. During the lifetime of the
Participant the Options granted hereunder may only be exercised by the
Participant as herein provided and in the event of the death of the Participant,
by the person or persons to whom the Participant's rights under the Options pass
by the Participant's will or applicable law.
12. The
Participant acknowledges and agrees that the Board may, at any time, suspend or
terminate the Plan. The Board may also at any time amend or revise
the terms of the Plan, provided that no such amendment or revision shall alter
the terms of the Options granted herein without the consent of the
Participant.
13. The
obligation of the Corporation to issue and deliver Shares on the exercise of the
Options in accordance with the terms and conditions of this Agreement is subject
to applicable securities legislation and to the receipt of any approvals that
may be required from any regulatory authority or stock exchange having
jurisdiction over the securities of the Corporation. If Shares cannot
be issued to the Participant upon the exercise of the Options for any reason
whatsoever, the obligation of the Corporation to issue such Shares, shall
terminate and any funds paid to the Corporation in connection with the exercise
of the Options will be returned to the Participant as soon as
practicable.
14. The
Participant acknowledges that he has read and understands the Plan and the
Participant and the Corporation agree that all provisions thereof apply to the
parties hereto and to this Agreement with the same effect as if such provisions
were set out in this Agreement.
15. If
at any time the Corporation grants to its shareholders the right to subscribe
for and purchase pro rata additional securities of the Corporation or of any
other corporation or entity, there shall be no adjustments made to the number of
Shares or other securities subject to the Option in consequence thereof and the
Option of the Participant shall remain unaffected.
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16. Any
reference in this Agreement to a capitalized word not herein defined shall refer
to that word as defined in the Plan.
17. Time
shall be of the essence of this Agreement.
18. This
Agreement shall be governed by and construed in accordance with the laws of the
State of Texas.
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IN
WITNESS WHEREOF the parties hereto have executed this Agreement as of the date
and year first above written.
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Vantage
Drilling Company
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Participant
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By:
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Name:
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Name:
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Title:
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