EXHIBIT 4.5
OPTION AGREEMENT
Grantor: Xxxxxx Well Servicing, Inc. Number of Shares: 5,000
Grantee: Xxx Xxxxxxx Termination: On or before
Date of Grant: October 1, 1994 June 30, 2002
THE SECURITIES REPRESENTED BY THIS INVESTMENT OR DOCUMENT HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE. WITHOUT SUCH
REGISTRATION, SUCH SECURITIES MAY NOT BE SOLD, PLEDGED, HYPOTHECATED OR
OTHERWISE TRANSFERRED EXCEPT UPON DELIVERY TO XXXXXX WELL SERVICING, INC. (THE
"CORPORATION") , IF IT SO REQUESTS, OF AN OPINION OF COUNSEL SATISFACTORY TO THE
CORPORATION THAT REGISTRATION IS NOT REQUIRED FOR SUCH TRANSFER OR THE
SUBMISSION TO THE CORPORATION OF SUCH OTHER EVIDENCE AS MAY BE SATISFACTORY TO
THE CORPORATION TO THE EFFECT THAT ANY SUCH TRANSFER SHALL NOT BE IN VIOLATION
OF THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS
OR ANY RULE OR REGULATION PROMULGATED THEREUNDER.
The undersigned, XXXXXX WELL SERVICING, INC. (the "Corporation"), a Texas
corporation, for and in consideration of good and valuable consideration,
receipt of which is hereby acknowledged, hereby certifies and warrants that Xxx
Xxxxxxx (the "Option Holder") is entitled, subject to the terms and conditions
hereof, and at such times and in such amounts as are provided herein, to
purchase on or before the close of business on the date five years following
vesting (but in no event later than June 30, 2002), an aggregate of 5,000 shares
of common stock ($1.00 par value) of the Corporation (the "Stock") upon
presentation of this option (the "Option") and payment of the purchase price
(the "Purchase Price") as hereinafter provided.
1. EXERCISE OF OPTION. Subject to the other terms and conditions of this
Agreement, the Option granted hereby shall vest and become exercisable on the
earlier of: (i) the dates set forth below as to the number of shares set forth
opposite such dates; (ii) the date on which the Stock becomes a class of
securities that is registered pursuant to Sections 12 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "1934 Act"); or (iii) upon a Change of
Control (as hereinafter defined).
VESTING DATES NUMBER OF SHARES VESTED
June 30, 1995 1,700
June 30, 1996 1,650
June 30, 1997 1,650
For purposes of this Option, the term "Change of Control" shall mean the
occurrence of any one or more of the following events:
a. any corporation (other than the Corporation or a Subsidiary),
person or group (within the meaning of Sections 13(d) or 14(d)(2) of the
0000 Xxx) makes a tender or exchange offer which, if consummated, would
make such corporation, person or group the beneficial owner (within the
meaning of Rule l3d-3 under the 0000 Xxx) of voting securities of the
Corporation representing more than 50% of the total number of votes
eligible to be cast at any election of directors of the Corporation and,
pursuant to such offer, purchases are made (an "Offer");
b. the shareholders of the Corporation approve an agreement to merge
or consolidate the Corporation with or into another corporation or to
sell, lease or otherwise dispose of all or substantially all of its
assets, or adopt a plan of liquidation;
c. any corporation, person or group (within the meaning of Sections
13(d) and 14(d)(2) of the 0000 Xxx) becomes the beneficial owner (within
the meaning of Rule 13d-3 under the 0000 Xxx) of voting securities of the
Corporation representing more than 50% of the total number of votes
eligible to be cast at any election of directors of the Corporation; or
d. those persons who constitute the Directors at the beginning of
any two-year period cease to constitute a majority of the Board at any
time during such two-year period;
provided, however, that in no event shall a Change of Control be deemed to have
occurred if the Board, by written action taken prior to, and with respect to, an
event otherwise constituting a Change of Control, determines in its discretion
that such event shall not constitute a Change of Control for purposes of this
Option.
2. RESERVATION OF STOCK. The Corporation covenants that, while this Option
is exercisable, it will reserve from its authorized and unissued common stock a
sufficient number of shares to provide for the issuance and delivery of stock
pursuant to the exercise hereof.
3. PROTECTION AGAINST DILUTION. In any of the following events occurring
after the date of this Option, appropriate adjustment shall be made in the
number of shares deliverable upon the exercise of this Option or the price per
share to be paid, so as to maintain the proportionate interest of the Option
Holder:
a. Recapitalization of the Corporation through a stock split or a
reverse stock split; or
b. Declaration of a dividend on the stock, payable in shares of
stock or securities convertible into stock.
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4. MERGERS. In the event the Corporation shall be merged or consolidated
with another corporation during the term of this Option, or substantially all of
its assets shall be sold to another company in exchange for stock of such other
company, or stock of any company related to such other company, with a view to
distributing such stock to the stockholders of the Corporation, the Corporation,
at its option, may invoke the provisions described in Section 6 hereof; however,
if the Corporation consummates any such transaction without having invoked the
provisions of Section 6, each share of Stock purchasable by this Option shal1,
upon consummation of any such transaction, be replaced for the purposes hereof
by the securities or property issuable or distributable pursuant to such
transaction in respect of one share of Stock of the Corporation.
5. PROPOSED REGISTERED OFFERING OF SECURITIES. In the event the
Corporation shall propose to make a public offering of its securities, to be
registered under the Securities Act of 1933, the Corporation, at its option, may
invoke the provisions described in Section 6 hereof; however, if the Corporation
consummates any such transaction without having invoked the provisions described
in Section 6, this Option shall continue to be valid and exercisable, subject to
all other applicable provisions hereof.
6. SPECIAL PROVISIONS. If the Corporation, in good faith, believes a
transaction as described in Sections 4 or 5 hereof (hereinafter referred to as
"Transaction") shall be consummated or closed by the Corporation, it may elect
to notify the Holder of the pendency of the Transaction and to specify a date,
at least twenty days following such notice ("Notice"), by which time the Option
Holder may, in his discretion, evidence his intent conditionally to exercise
this Option (subject to the consummation of the Transaction) by depositing funds
into a separate escrow account, to be identified in the Notice, or by delivering
to the Corporation an irrevocable bank letter of credit in a form acceptable to
the Corporation, with such funds or letter of credit being in an amount equal to
the exercise price for any or all Options the Option Holder determines
conditionally to exercise. If such funds or letter of credit are not received or
deposited by the deadline date specified in the Notice, or if by such date the
Option Holder has not given notice of exercise as described in Section 9 hereof,
this Option shall not be exercisable (otherwise than in accordance with this
Section 6) until the Corporation notifies the Option Holder that the Transaction
will not be consummated or closed (such notice hereinafter being referred to as
a "Transaction Termination Notice"). The Corporation hereby covenants and agrees
that if it has issued a Notice with respect to a Transaction, it will provide a
Transaction Termination Notice promptly at such time as it becomes reasonably
certain that the Transaction will not be consummated or closed. At such times as
the Corporation invokes the procedures of this Section 6, the following
additional conditions shall apply:
a. If the Option Holder deposits funds to the escrow account or
delivers a letter of credit to the Corporation and the Transaction is
consummated or closed, the Option, upon the date of such consummation or
closing, is deemed irrevocably exercised to the extent of such funds or
letter of credit, and any unexercised Options thereupon shall lapse and be
null and void, and shall not thereafter be exercisable. If a Transaction
Termination
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Notice is sent, the Option Holder's escrow funds or letter of credit shall
be promptly returned and Option shall be exercisable as otherwise provided
herein.
b. If an Option Holder does not deposit funds to the escrow account
or deliver a letter of credit to the Corporation, and the Transaction is
consummated or closed, the Option, upon and as of the date of such
consummation or closing, is deemed to have lapsed and to be null and void
and shall not thereafter be exercisable. If a Transaction Termination
Notice is sent, the Option thereupon shall be exercisable as otherwise
provided herein.
7. STOCKHOLDER'S RIGHTS. Until the valid exercise of this Option, Option
Holder, by virtue of this Option, shall not be entitled to any rights of a
stockholder of the Corporation; but immediately upon the exercise of this Option
and upon payment as provided herein, the Option Holder shall be deemed a record
holder of the Stock with respect to which this Option is exercised.
8. EXERCISE OF OPTION AND PURCHASE PRICE. The Option hereinbefore
granted shall be exercisable and vested (to the extent that it is exercisable in
accordance with its terms) according to the vesting dates as set forth in
Section 1. The Purchase Price for each share of Common Stock purchased hereunder
shall be Twenty Dollars ($20.00).
Upon the death of the Option Holder, this Option may be exercised by said
Option Holder's heirs, executors, administrators, or estate in accordance with
the provisions herein within 120 days following the death of said Option Holder.
The Options may be divided into Options of one share or multiples thereof, upon
surrender at the offices of the Corporation. The Option Holder may exercise this
Option, to the extent otherwise provided herein, for all or less than all stock
subject hereof.
9. METHOD OF EXERCISING OPTION. Except as otherwise provided by
Section 6 hereof, the Option Holder (or his heirs, executors or administrators)
shall deliver to the Corporation written notice of his election to exercise the
Option, which notice shall specify the date and time of the exercise of the
Option and the number of shares of Stock in respect of which the Option is to be
exercised. The date specified in such notice shall be not less than five nor
more than forty-five days from the date the notice of exercise is given, and
shall be on a business day, and the time specified shall be during the regular
business hours of the Corporation. Any such notice shall be irrevocable, except
upon the written consent of the Corporation and the Option Holder.
10. PAYMENT AND DELIVERY OF SHARES. The Option Holder shall, at the date
and time specified in the notice described in Section 9, deliver a bank
cashier's or treasurer's check or checks payable in the amount of the Option
exercise price for the shares of Stock in respect of which the Option is being
exercised. Such delivery shall be made to the Corporation at its principal
office in San Antonio or at such other place as the Corporation may specify in
writing and such check or checks shall be drawn to the order of the Corporation.
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Contemporaneously with such payments, the Corporation shall deliver to the
Option Holder, duly endorsed and in proper form for transfer, certificates
representing the shares of Stock in respect of which the Option is being
exercised. The Option Holder acknowledges and agrees that the certificates may
bear restrictive legends, generally in the form set forth at the beginning of
this Agreement.
11. RESTRICTIONS. Unless the offering and sale of the Stock to be issued
upon the particular exercise of the Option shall have been effectively
registered under the Securities Act of 1933, as amended, or any successor
legislation (the "Act"), the Corporation shall be under no obligation to issue
the Stock covered by such exercise unless and until the following conditions
have been fulfilled.
The person(s) who exercise the Option shall represent to the Corporation,
at the time of such exercise, that such person(s) are acquiring such Stock for
his or her own account, for investment and not with a view to, or for sale in
connection with, the distribution of any such Stock, in which event the
person(s) acquiring such Stock shall be bound by the restrictions concerning
transfers set forth in the boldface legend at the beginning of this Agreement.
12. TERMINATION. In the event the Option Holder's employment is terminated
by the Corporation, with or without cause, the Option Holder's right to exercise
any unvested portion of this Option shall cease immediately, and this Option
shall thereupon terminate.
13. NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been fully given if delivered or mailed by
certified or registered mail, return receipt requested, postage prepaid:
a. If to the Corporation, at: 000 X.X. Xxxx 000, Xxxxx 000
Xxx Xxxxxxx, Xxxxx 00000
b. If to the Option Holder, at: ____________________________
____________________________
____________________________
14. MODIFICATION. No modification or amendment of this Agreement shall be
effective unless such modification or amendment shall be in writing and signed
by the parties hereto.
15. CONSTRUCTION. This Agreement shall be deemed to be made under and
shall be construed in accordance with the internal laws, and not the laws of
conflict, of the State of Texas.
16. BENEFIT. This Agreement shall not be transferable by the Option Holder
otherwise than by will, or by the laws of descent and distribution and shall be
exercisable, during the Option Holder's lifetime, only by the Option Holder or
his or her guardian or legal
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representative. The Option shall not be assigned, pledged or hypothecated in any
way (whether by operation of law or otherwise) and shall not be subject to
execution, attachment or similar process. Any attempted transfer, assignment,
pledge, hypothecation or other disposition of the Option or of any rights
granted hereunder contrary to the provisions of this paragraph, or the levy of
any attachment or similar process upon the Option or such rights, shall be null
and void. This Agreement shall be binding upon and inure to the benefit of the
Corporation and its successors and assigns and the Option Holder and its heirs,
executors and administrators.
17. TERM. This Option as to the right to purchase a certain number of
shares shall become void for such number of shares unless the rights hereunder
are exercised and payment made prior to the close of business on the date five
years from the date of vesting for such shares as such dates are set forth in
Section 1.
Dated effective as of October 1, 1994.
XXXXXX WELL SERVICING, INC.
ATTEST: /s/ XXX XXXXXXX By: /s/ XXXXXXX X. XXXXXX
Name: XXX XXXXXXX Name: XXXXXXX X. XXXXXX
Title: VICE PRESIDENT Title: PRESIDENT
OPTION HOLDER:
By: ________________
Name: ________________
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