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EXHIBIT 10.24
THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM
UNDER SUCH ACT.
BOOTS & XXXXX INTERNATIONAL WELL CONTROL, INC.
COMMON STOCK PURCHASE WARRANT
NO. WA-1 JULY 23, 1998
PPN 099469 2 * 8
BOOTS & XXXXX INTERNATIONAL WELL CONTROL, INC. (the "COMPANY"), a
Delaware corporation, for value received, hereby certifies that THE PRUDENTIAL
INSURANCE COMPANY OF AMERICA or its registered assigns is entitled to purchase
from the Company 3,165,396 duly authorized, validly issued, fully paid and
nonassessable shares of the Company's common stock, par value $0.00001 per share
(the "ORIGINAL COMMON STOCK"), at an initial exercise price per share of $6.70
(subject to adjustment at the option of the Purchaser as set forth in section
1G), at any time or from time to time after July 23, 2000 (subject to the
exceptions set forth in section 1H), and prior to 5:00 p.m., New York City time,
on the later of (i) July 23, 2008 and (ii) six months after the date the Notes
(as defined below) are fully retired, all subject to the terms, conditions and
adjustments set forth below in this Warrant.
This Warrant is one of the Common Stock Purchase Warrants (the
"WARRANTS", such term to include all Warrants issued in substitution therefor)
originally issued in connection with the issue and sale by the Company of the
Company's 11.28% Senior Subordinated Notes due July 23, 2006, in the aggregate
principal amount of $30,000,000 (the "NOTES") pursuant to that certain
Subordinated Note and Warrant Purchase Agreement dated of even date herewith
(the "PURCHASE AGREEMENT") between the Company and The Prudential Insurance
Company of America (the "PURCHASER"). The Warrants originally so issued
evidence rights to purchase an aggregate of 3,165,396 shares of Original Common
Stock, subject to adjustment as provided herein. The term "NOTES" as used
herein shall include each Note delivered pursuant to any provision of the
Purchase Agreement and each Note delivered in substitution or exchange for any
such Note pursuant to any such provision. Certain capitalized terms used in
this Warrant are defined in section 13.
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1. Exercise of Warrant.
1A. Manner of Exercise. This Warrant may be exercised by the holder
hereof, in whole or in part, during normal business hours on any Business Day on
or after July 23, 2000 (subject to the exceptions set forth in section 1H), and
prior to 5:00 p.m., New York City time, on the later of (a) July 23, 2008 and
(b) six months after the date the Notes are fully retired, by surrender of this
Warrant, with the form of subscription at the end hereof (or a reasonable
facsimile thereof) duly executed by such holder, to the Company at its principal
office (or, if such exercise shall be in connection with an underwritten public
offering of shares of Common Stock (or Other Securities) subject to this
Warrant, at the location at which the underwriters shall have agreed to accept
delivery thereof), accompanied by payment, in cash or by certified or official
bank check payable to the order of the Company, in the amount obtained by
multiplying (a) the number of shares of Original Common Stock (without giving
effect to any adjustment therein) designated in such form of subscription by (b)
the Exercise Price. The number of duly authorized, validly issued, fully paid
and nonassessable shares of Common Stock which the holder of this Warrant shall
be entitled to receive upon each exercise hereof shall be determined by
multiplying the number of shares of Common Stock which would otherwise (but for
the provisions of section 2) be issuable upon such exercise, as designated by
the holder hereof pursuant to this section 1A, by a fraction of which (a) the
numerator is the Initial Exercise Price and (b) the denominator is the Exercise
Price in effect on the date of such exercise. The "EXERCISE PRICE" shall
initially be the Initial Exercise Price per share, shall be adjusted and
readjusted from time to time as provided in section 2 (including, without
limitation, adjustments thereunder in the circumstances contemplated by the
final sentence of section 1G) and, as so adjusted and readjusted, shall remain
in effect until a further adjustment or readjustment thereof is required by
section 2.
1B. When Exercise Effective. Each exercise of this Warrant shall be
deemed to have been effected and the Exercise Price shall be determined
immediately prior to the close of business on the Business Day on which this
Warrant shall have been surrendered to the Company as provided in section 1A,
and at such time the person or persons in whose name or names any certificate or
certificates for shares of Original Common Stock (or Other Securities) shall be
issuable upon such exercise as provided in section 1C shall be deemed to have
become the holder or holders of record thereof.
1C. Delivery of Stock Certificates, etc. Promptly after the exercise
of this Warrant, in whole or in part, and in any event within five Business Days
thereafter (unless such exercise shall be in connection with an underwritten
public offering of shares of Common Stock (or Other Securities) subject to this
Warrant, in which event concurrently with such exercise), the Company at its
expense will cause to be issued in the name of and delivered to the holder
hereof or, subject to section 8, as such holder may direct,
(a) a certificate or certificates for the number of duly
authorized, validly issued, fully paid and nonassessable shares of Common
Stock (or Other Securities) to which such holder shall be entitled upon
such exercise, and
(b) in case such exercise is in part only, a new Warrant or
Warrants of like tenor, specifying on the face or faces thereof the number
of shares of Common Stock
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equal to the number of such shares specified on the face of this Warrant
minus the number of such shares designated by the holder upon such exercise
as provided in section 1A.
1D. Company to Reaffirm Obligations. The Company will, at the time
of or at any time after each exercise of this Warrant, upon the request of the
holder hereof or of any shares of Common Stock (or Other Securities) issued upon
such exercise, acknowledge in writing its continuing obligation to afford to
such holder all rights to which such holder shall continue to be entitled after
such exercise in accordance with the terms of this Warrant, provided that if any
such holder shall fail to make any such request, the failure shall not affect
the continuing obligation of the Company to afford such rights to such holder.
1E. Fractional Shares. 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 (except as provided in section 2B) on
the Common Stock or Other Securities issued upon such conversion. If any
fractional interest in a share of Common Stock would, except for the provisions
of the first sentence of this section 1E, be deliverable upon the exercise of
this Warrant, the Company shall, in lieu of delivering the fractional share
therefor, pay to the holder exercising this Warrant an amount in cash equal to
the Market Price of such fractional interest.
1F. Cashless Exercise. As an alternative to exercise of this
Warrant by payment in cash (or by certified or official bank check), as provided
above in section 1A, the holder of this Warrant may exercise its right to
purchase some or all of the shares of Common Stock pursuant to this Warrant, on
a net basis without the exchange of any funds (a "CASHLESS EXERCISE"), such that
the holder hereof receives the total number of shares of Common Stock subscribed
for pursuant to this Warrant reduced by that number of shares of Common Stock,
valued at Market Price, at the time of exercise equal to the aggregate Exercise
Price that would otherwise have been paid by the holder of this Warrant for such
total number of shares of Common Stock.
1G. Unilateral Change of Initial Exercise Price. The holder hereof
shall have the unilateral right, but not the obligation, exercisable by written
notice (the "CHANGE NOTICE") to the Company given at any time after July 23,
2000 and prior to September 22, 2000 to change the Initial Exercise Price to the
amount that equals the average Market Value of one share of Common Stock for
the thirty (30) trading days prior to July 23, 2000. The change in the Initial
Exercise Price shall be retroactive to the date of this Warrant. Upon the
change in the Initial Exercise Price, the Exercise Price at the time of the
Change Notice (but prior to giving effect thereto) shall be redetermined by
adjusting the Initial Exercise Price (as so changed) to take into account all
adjustments pursuant to section 2 hereof, other than adjustments for
transactions or events of the type addressed by sections 2B and 2F, that have
occurred after the date of this Warrant and prior to the Change Notice.
1H. Incidental Registrations; Participation Rights. Notwithstanding
anything to the contrary contained in this Warrant, this Warrant shall be
exercisable prior to July 23, 2000 in
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connection with the exercise by the holder hereof of its rights under Section
2.2 of the Registration Rights Agreement or its rights under the Participation
Rights Agreement.
2. Protection Against Dilution or Other Impairment of Rights; Adjustment
of Exercise Price.
2A. Issuance of Additional Shares of Common Stock. In case the
Company, at any time or from time to time after the date hereof (the "INITIAL
DATE"), shall issue or sell Additional Shares of Common Stock (including
Additional Shares of Common Stock deemed to be issued pursuant to section 2C or
2D but excluding Additional Shares of Common Stock issued upon the exercise of
Employee Options) without consideration or for a consideration per share
(determined pursuant to section 2E) less than the Market Price in effect on the
date of and immediately prior to such issue or sale, then, and in each such
case, subject to section 2H, the Exercise Price shall be reduced, concurrently
with such issue or sale, to a price (calculated to the nearest .001 of a cent)
determined by multiplying such Exercise Price by a fraction,
(a) the numerator of which shall be (i) the number of shares of Common
Stock outstanding immediately prior to such issue or sale plus (ii) the
number of shares of Common Stock which the aggregate consideration received
by the Company for the total number of such Additional Shares of Common
Stock so issued or sold would purchase at such Market Price, and
(b) the denominator of which shall be the number of shares of Common
Stock outstanding immediately after such issue or sale,
provided that, for the purposes of this section 2A, (x) immediately after any
Additional Shares of Common Stock are deemed to have been issued pursuant to
section 2C or 2D, such Additional Shares shall be deemed to be outstanding, and
(y) treasury shares shall not be deemed to be outstanding.
2B. Extraordinary Dividends and Distributions. In case the Company
at any time or from time to time after the date hereof shall declare, order, pay
or make a dividend or other distribution in respect of Common Stock or Other
Securities (including, without limitation, any distribution of other or
additional stock or other securities or property or Options by way of dividend
or spin-off, reclassification, recapitalization or similar corporate
rearrangement and any redemption or acquisition of any such stock or Options on
the Common Stock), other than (a) a dividend payable in Additional Shares of
Common Stock or in Options for Common Stock or (b) a regular periodic dividend
payable in cash then, and in each such case, the Company shall hold in trust,
for the benefit of the holder of this Warrant, commencing on the date such
dividend or other distribution is paid to the holders of Common Stock, the
securities and other property (including cash) which such holder would have
received if such holder had exercised this Warrant immediately prior to the
record date fixed in connection with such dividend or other distribution. The
Company will pay over to the holder of this Warrant, on any date this Warrant is
exercised, an amount of property held in such trust that is equal to the total
amount of property held in such trust on such
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date multiplied by a fraction, the numerator of which is the number of shares of
Common Stock issued pursuant to such exercise and the denominator of which is
the total number of shares of Common Stock the holder of this Warrant was
permitted to purchase upon the exercise hereof immediately prior to such
exercise. Upon the expiration of this Warrant (and compliance with the
immediately preceding sentence) such trust will be canceled and the property
held in such trust shall be returned to the Company.
2C. Treatment of Options and Convertible Securities. In case the
Company, at any time or from time to time after the date hereof, shall issue,
sell, grant or assume, or shall fix a record date for the determination of
holders of any class of securities entitled to receive, any Options or
Convertible Securities, whether or not such Options or the right to convert or
exchange any such Convertible Securities are immediately exercisable, then, and
in each such case, the maximum number of Additional Shares of Common Stock (as
set forth in the instrument relating thereto, without regard to any provisions
contained therein for a subsequent adjustment of such number) issuable upon the
exercise of such Options or, in the case of Convertible Securities and Options
therefor, issuable upon the conversion or exchange of such Convertible
Securities (or the exercise of such Options for Convertible Securities and
subsequent conversion or exchange of the Convertible Securities issued), shall
be deemed to be Additional Shares of Common Stock issued as of the time of such
issue, sale, grant or assumption or, in case such a record date shall have been
fixed, as of the close of business on such record date, provided, that such
Additional Shares of Common Stock shall not be deemed to have been issued (i) if
such Options constitute Employee Options or (ii) unless the consideration per
share (determined pursuant to section 2E) of such shares would be less than the
Market Price in effect on the date of and immediately prior to such issue, sale,
grant or assumption or immediately prior to the close of business on such record
date or, if the Common Stock trades on an ex-dividend basis, on the date prior
to the commencement of ex-dividend trading, as the case may be, and provided,
further, that in any such case in which Additional Shares of Common Stock are
deemed to be issued,
(a) if an adjustment of the Exercise Price shall be made upon the
fixing of a record date as referred to in the first sentence of this
section 2C, no further adjustment of the Exercise Price shall be made as a
result of the subsequent issue or sale of any Options or Convertible
Securities for the purpose of which such record date was set;
(b) no further adjustment of the Exercise Price shall be made upon the
subsequent issue or sale of Additional Shares of Common Stock or
Convertible Securities upon the exercise of such Options or the conversion
or exchange of such Convertible Securities;
(c) if such Options or Convertible Securities by their terms provide,
with the passage of time or otherwise, for any change in the consideration
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payable to the Company, or change in the number of Additional Shares of
Common Stock issuable, upon the exercise, conversion or exchange thereof
(by change of rate or otherwise), the Exercise Price computed upon the
original issue, sale, grant or assumption thereof (or upon the occurrence
of the record date with respect thereto), and any subsequent adjustments
based thereon, shall, upon any such change becoming effective, be
recomputed to reflect such change insofar as it affects such Options, or
the rights of conversion or exchange under such Convertible Securities,
which are outstanding at such time;
(d) upon the expiration of any such Options or of the rights of
conversion or exchange under any such Convertible Securities which shall
not have been exercised (or upon purchase by the Company and cancellation
or retirement of any such Options which shall not have been exercised or of
any such Convertible Securities the rights of conversion or exchange under
which shall not have been exercised), the Exercise Price computed upon the
original issue, sale, grant or assumption thereof (or upon the occurrence
of the record date with respect thereto), and any subsequent adjustments
based thereon, shall, upon such expiration (or such cancellation or
retirement, as the case may be), be recomputed as if:
(i) in the case of Options for Common Stock or in the case of
Convertible Securities, the only Additional Shares of Common Stock
issued or sold (or deemed issued or sold) were the Additional Shares
of Common Stock, if any, actually issued or sold upon the exercise of
such Options or the conversion or exchange of such Convertible
Securities and the consideration received therefor was (x) an amount
equal to (A) the consideration actually received by the Company for
the issue, sale, grant or assumption of all such Options, whether or
not exercised, plus (B) the consideration actually received by the
Company upon such exercise, minus (C) the consideration paid by the
Company for any purchase of such Options which were not exercised, or
(y) an amount equal to (A) the consideration actually received by the
Company for the issue, sale, grant or assumption of all such
Convertible Securities which were actually converted or exchanged,
plus (B) the additional consideration, if any, actually received by
the Company upon such conversion or exchange, minus (C) the excess, if
any, of the consideration paid by the Company for any purchase of such
Convertible Securities, the rights of conversion or exchange under
which were not exercised, over an amount that would be equal to the
Fair Value of the Convertible Securities so purchased if such
Convertible Securities were not convertible into or exchangeable for
Additional Shares of Common Stock, and
(ii) in the case of Options for Convertible Securities, only the
Convertible Securities, if any, actually issued or sold upon the exercise
of
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such Options were issued at the time of the issue, sale, grant or
assumption of such Options, and the consideration received by the Company
for the Additional Shares of Common Stock deemed to have then been issued
was an amount equal to (x) the consideration actually received by the
Company for the issue, sale, grant or assumption of all such Options,
whether or not exercised, plus (y) the consideration deemed to have been
received by the Company (pursuant to section 2E) upon the issue or sale of
the Convertible Securities with respect to which such Options were actually
exercised, minus (z) the consideration paid by the Company for any purchase
of such Options which were not exercised; and
(e) no recomputation pursuant to subsection (c) or (d) above shall
have the effect of increasing the Exercise Price then in effect by an
amount in excess of the amount of the adjustment thereof originally made in
respect of the issue, sale, grant or assumption of such Options or
Convertible Securities.
2D. Treatment of Stock Dividends, Stock Splits, Etc. In case the
Company, at any time or from time to time after the date hereof, shall declare
or pay any dividend or other distribution on any class of securities of the
Company payable in shares of Common Stock, or shall effect a subdivision of the
outstanding shares of Common Stock into a greater number of shares of Common
Stock (by reclassification or otherwise than by payment of a dividend in Common
Stock), then, and in each such case, Additional Shares of Common Stock shall be
deemed to have been issued (a) in the case of any such dividend or other
distribution, immediately after the close of business on the record date for the
determination of holders of any class of securities entitled to receive such
dividend or other distribution, or (b) in the case of any such subdivision, at
the close of business on the day immediately prior to the day upon which such
corporate action becomes effective.
2E. Computation of Consideration. For the purposes of this Warrant:
(a) The consideration for the issue or sale of any Additional Shares
of Common Stock or for the issue, sale, grant or assumption of any Options
or Convertible Securities, irrespective of the accounting treatment of such
consideration,
(i) insofar as it consists of cash, shall be computed as the
amount of cash received by the Company, and insofar as it consists of
securities or other property, shall be computed as of the date
immediately preceding such issue, sale, grant or assumption as the
Fair Value of such consideration (or, if such consideration is
received for the issue or sale of Additional Shares of Common Stock
and the Market Price thereof is less than the Fair Value of such
consideration, then such consideration shall be computed as the Market
Price of such Additional Shares of Common
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Stock), in each case without deducting any expenses paid or incurred
by the Company, any commissions or compensation paid or concessions or
discounts allowed to underwriters, dealers or other performing similar
services and any accrued interest or dividends in connection with such
issue or sale, and
(ii) in case Additional Shares of Common Stock are issued or sold
or Options or Convertible Securities are issued, sold, granted or
assumed together with other stock or securities or other assets of the
Company for a consideration which covers both, shall be the proportion
of such consideration so received, computed as provided in clause (i)
above, allocable to such Additional Shares of Common Stock or Options
or Convertible Securities, as the case may be, all as determined in
good faith by the Board of Directors or the Company.
(b) All Additional Shares of Common Stock, Options or Convertible
Securities issued in payment of any dividend or other distribution on any
class of stock of the Company and all Additional Shares of Common Stock
issued to effect a subdivision of the outstanding shares of Common Stock
into a greater number of shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in Common Stock) shall be deemed to
have been issued without consideration.
(c) Additional Shares of Common Stock deemed to have been issued for
consideration pursuant to section 2C, relating to Options and Convertible
Securities, shall be deemed to have been issued for a consideration per
share determined by dividing
(i) the total amount, if any, received and receivable by the
Company as consideration for the issue, sale, grant or assumption of
the Options or Convertible Securities in question, plus the minimum
aggregate amount of additional consideration (as set forth in the
instruments relating thereto, without regard to any provision
contained therein for a subsequent adjustment of such consideration)
payable to the Company upon the exercise in full of such Options or
the conversion or exchange of such Convertible Securities or, in the
case of Options for Convertible Securities, the exercise of such
Options for Convertible Securities and the conversion or exchange of
such Convertible Securities, in each case computing such consideration
as provided in the foregoing subsection (a),
by
(ii) the maximum number of shares of Common Stock (as set forth
in the instruments relating thereto, without regard to any provision
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contained therein for a subsequent adjustment of such number) issuable
upon the exercise of such Options or the conversion or exchange of
such Convertible Securities.
2F. Adjustments for Combinations, Etc. In case the outstanding
shares of Common Stock shall be combined or consolidated, by reclassification or
otherwise, into a lesser number of shares of Common Stock, the Exercise Price in
effect immediately prior to such combination or consolidation shall,
concurrently with the effectiveness of such combination or consolidation, be
proportionately increased.
2G. Dilution in Case of Other Securities. In case any Other
Securities shall be issued or sold or shall become subject to issue or sale upon
the conversion or exchange of any stock (or Other Securities) of the Company (or
any issuer of Other Securities or any other Person referred to in section 2I) or
to subscription, purchase or other acquisition pursuant to any Options issued or
granted by the Company (or any such other issuer or Person) for a consideration
such as to dilute, on a basis to which the standards established in the other
provisions of this Warrant do not apply, the exercise rights granted by this
Warrant, then, and in each such case, the computations, adjustments and
readjustments provided for in this Warrant with respect to the Exercise Price
shall be made as nearly as possible in the manner so provided and applied to
determine the amount of Other Securities from time to time receivable upon the
exercise of this Warrant, so as to protect the holder of this Warrant against
the effect of such dilution.
2H. Minimum Adjustment of Exercise Price. If the amount of any
adjustment of the Exercise Price required hereunder would be less than one
percent of the Exercise Price in effect at the time such adjustment is otherwise
so required to be made, such amount shall be carried forward and adjustment with
respect thereto made at the time of and together with any subsequent adjustment
which, together with such amount and any other amount or amounts so carried
forward, shall aggregate at least one percent of such Exercise Price; provided,
that upon the exercise of this Warrant, all adjustments carried forward and not
theretofore made up to and including the date of such exercise shall be made to
the nearest .001 of a cent.
2I. Changes in Common Stock. In case at any time the Company shall
be a party to any transaction (including, without limitation, a merger,
consolidation, sale of all or substantially all of the Company's assets,
liquidation or recapitalization of the Common Stock) in which the previously
outstanding Common Stock shall be changed into or exchanged for different
securities of the Company or common stock or other securities of another
corporation or interests in a noncorporate entity or other property (including
cash) or any combination of any of the foregoing or in which the Common Stock
ceases to be a publicly traded security either listed on the New York Stock
Exchange or the American Stock Exchange or quoted by the Nasdaq National Market
or any successor thereto or comparable system (each such transaction being
herein called the "TRANSACTION", the date on which the Transaction is first
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announced to the public being herein called the "ANNOUNCEMENT DATE", the date of
consummation of the Transaction being herein called the "CONSUMMATION DATE", the
Company (in the case of a recapitalization of the Common Stock or any other such
transaction in which the Company retains substantially all of its assets and
survives as a corporation) or such other corporation or entity (in each other
case) being herein called the "ACQUIRING COMPANY", and the common stock (or
equivalent equity interest) of the Acquiring Company being herein called the
"ACQUIRER'S COMMON STOCK", except that if the Acquiring Company shall not meet
the requirements set forth in subsections (d), (e) and (f) below and a
corporation which directly or indirectly controls the Acquiring Company (a
"PARENT") meets such requirements, "Acquiring Company" shall refer to such
Parent and "Acquirer's Common Stock" shall refer to such Parent's common stock
(or equivalent equity interests)) then, as a condition of the consummation of
the Transaction, lawful and adequate provisions (in form satisfactory to the
Required Holders) shall be made so that the holder of this Warrant, upon the
exercise thereof at any time on or after the Consummation Date (but subject, in
the case of an election pursuant to subsection (b) or (c) below, to the time
limitation hereinafter provided for such election) shall be entitled to receive,
and this Warrant shall thereafter represent the right to receive, in lieu of the
Common Stock issuable upon such exercise prior to the Consummation Date, either:
(a) shares of the Acquirer's Common Stock at an Exercise Price per
share equal to the Exercise Price in effect immediately prior to the
Consummation Date multiplied by a fraction the numerator of which is the
Market Price per share of the Acquirer's Common Stock determined as of the
Consummation Date and the denominator of which is the Market Price per
share of the Common Stock determined as of the Consummation Date (subject
to adjustments from and after the Consummation Date as nearly equivalent as
possible to the adjustments provided for in this Warrant); or,
(b) at the election of the holder of this Warrant pursuant to notice
given to the Company within six months after the Consummation Date, either
(i) the greatest amount of cash, securities or other property given to any
shareholder in consideration for any share of Common Stock at any time
during the period from and after the Announcement Date to and including the
Consummation Date by the Acquiring Company, the Company or any Affiliate of
either thereof, or (ii) an amount in cash equal to the product obtained by
multiplying (x) the number of shares of the Acquirer's Common Stock
purchasable upon the exercise or conversion of such Warrant as shall result
from adjustments thereto that would have been required pursuant to
subsection (a) above times (y) the Market Price per share for the
Acquirer's Common Stock, determined as of the day within the period from
and after the Announcement Date to and including the Consummation Date for
which the amount determined as provided in the definition of Market Price
shall have been the greatest, or,
(c) if neither the Acquiring Company nor the Parent meets the
requirements set forth in subsections (d), (e) and (f) below, at the
election of the holder of this Warrant
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pursuant to notice given to the Company within six months after the
Consummation Date, within 30 days after such election, in full satisfaction
of the exercise rights afforded under this Warrant to the holder thereof,
an amount equal to the Fair Value of such exercise rights, such Fair Value
to be determined with regard to all material relevant factors but without
regard to any negative effects on such value of the Transaction.
The Company agrees to obtain, and deliver to each holder of Warrants a copy of
the determination of an independent investment banker (selected by the Required
Holders with the approval of the Company) necessary to permit elections under
subsection (c) above within 15 days after the Consummation Date of any
Transaction to which subsection (c) is applicable.
The requirements referred to above in the case of the Acquiring
Company or its Parent are that immediately after the Consummation Date:
(d) it is a solvent corporation organized under the laws of any State
of the United States of America having its common stock listed on the New
York Stock Exchange or the American Stock Exchange or quoted by the Nasdaq
National Market or any successor thereto or comparable system, and such
common stock continues to meet such requirements for such listing or
quotation,
(e) it is required to file, and in each of its three fiscal years
immediately preceding the Consummation Date has filed, reports with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act, and
(f) in the case of the Parent, such Parent is required to include the
Acquiring Company in the consolidated financial statements contained in the
Parent's Annual Report on Form 10-K as filed with the Commission and is not
itself included in the consolidated financial statements of any other
Person (other than its consolidated subsidiaries).
Notwithstanding anything contained herein to the contrary, the Company shall not
effect any Transaction unless prior to the consummation thereof each corporation
or entity (other than the Company) which may be required to deliver any
securities or other property upon the exercise of Warrants shall assume, by
written instrument delivered to each holder of Warrants, the obligation to
deliver to such holder such securities or other property as to which, in
accordance with the foregoing provisions, such holder may be entitled, and such
corporation or entity shall have similarly delivered to each holder of Warrants
an opinion of counsel for such corporation or entity, satisfactory to each
holder of Warrants, which opinion shall state that all the outstanding Warrants
shall thereafter continue in full force and effect and shall be enforceable
against such corporation or entity in accordance with the terms hereof and
thereof, together with such other matters as such holders may reasonably
request.
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2J. Certain Issues Excepted. Anything herein to the contrary
notwithstanding, the Company shall not be required to make any adjustment of the
Exercise Price in the case of the issuance of the Warrants and the issuance of
shares of Common Stock issuable upon exercise of the Warrants.
2K. Notice of Adjustment. Upon the occurrence of any event requiring
an adjustment of the Exercise Price, then and in each such case the Company
shall promptly deliver to the holder of this Warrant an Officer's Certificate'
stating the Exercise Price resulting from such adjustment and the increase or
decrease, if any, in the number of shares of Common Stock issuable upon the
exercise of this Warrant, setting forth in reasonable detail the method of
calculation and the facts upon which such calculation is based. Within 90 days
after each fiscal year in which any such adjustment shall have occurred, or
within 30 days after any request therefor by the holder of this Warrant stating
that such holder contemplates the exercise of such Warrant, the Company will
obtain and deliver to the holder of this Warrant the opinion of its regular
independent auditors or another firm of independent public accountants of
recognized national standing selected by the Company's Board of Directors, which
opinion shall confirm the statements in the most recent Officer's Certificate
delivered under this section 2K.
2L. Other Notices. In case at any time:
(a) the Company shall declare to the holders of Common Stock any
dividend other than a regular periodic cash dividend or any periodic cash
dividend in excess of 115% of the cash dividend for the comparable fiscal
period in the immediately preceding fiscal year;
(b) the Company shall declare or pay any dividend upon Common Stock
payable in stock or make any special dividend or other distribution (other
than regular cash dividends) to the holders of Common Stock;
(c) the Company shall offer for subscription pro rata to the holders
of Common Stock any additional shares of stock of any class or other
rights;
(d) there shall be any capital reorganization, or reclassification of
the capital stock of the Company, or consolidation or merger of the Company
with, or sale of all or substantially all of its assets to, another
corporation or other entity;
(e) there shall be a voluntary or involuntary dissolution, liquidation
or winding-up of the Company;
(f) there shall be made any tender offer for any shares of capital
stock of the Company; or
Page 13
(g) there shall be any other Transaction;
then, in any one or more of such cases, the Company shall give to the holder of
this Warrant (i) at least 15 days prior to any event referred to in subsection
(a) or (b) above, at least 30 days prior to any event referred to in subsection
(c), (d) or (e) above, and within five days after it has knowledge of any
pending tender offer or other Transaction, written notice of the date on which
the books of the Company shall close or a record shall be taken for such
dividend, distribution or subscription rights or for determining rights to vote
in respect of any such reorganization, reclassification, consolidation, merger,
sale, dissolution, liquidation, winding-up or Transaction or the date by which
shareholders must tender shares in any tender offer and (ii) in the case of any
such reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation, winding-up or tender offer or Transaction known to the Company, at
least 30 days prior written notice of the date (or, if not then known, a
reasonable approximation thereof by the Company) when the same shall take place.
Such notice in accordance with the foregoing clause (i) shall also specify, in
the case of any such dividend, distribution or subscription rights, the date on
which the holders of Common Stock shall be entitled thereto, and such notice in
accordance with the foregoing clause (ii) shall also specify the date on which
the holders of Common Stock shall be entitled to exchange their Common Stock for
securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation,
winding-up, tender offer or Transaction, as the case may be. Such notice shall
also state that the action in question or the record date is subject to the
effectiveness of a registration statement under the Securities Act or to a
favorable vote of security holders, if either is required.
2M. Certain Events. If any event occurs as to which, in the good
faith judgment of the Board of Directors of the Company, the other provisions of
this Warrant are not strictly applicable or if strictly applicable would not
fairly protect the exercise rights of the holders of the Warrants in accordance
with the essential intent and principles of such provisions, then the Board of
Directors of the Company shall appoint its regular independent auditors or
another firm of independent public accountants of recognized national standing
which shall give their opinion upon the adjustment, if any, on a basis
consistent with such essential intent and principles, necessary to preserve,
without dilution, the rights of the holders of the Warrants. Upon receipt of
such opinion, the Board of Directors of the Company shall forthwith make the
adjustments described therein; provided, that no such adjustment shall have the
effect of increasing the Exercise Price as otherwise determined pursuant to this
Warrant. The Company may make such reductions in the Exercise Price as it deems
advisable, including any reductions necessary to ensure that any event treated
for Federal income tax purposes as a distribution of stock or stock rights not
be taxable to recipients.
2N. Prohibition of Certain Actions. The Company will not, by
amendment of its certificate or articles of incorporation or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue or
sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of
Page 14
the terms to be observed or performed hereunder by the Company, but will at all
times in good faith assist in the carrying out of all the provisions of this
Warrant and in the taking of all such action as may reasonably be requested by
the holder of this Warrant in order to protect the exercise privilege of the
holder of this Warrant against dilution or other impairment, consistent with the
tenor and purpose of this Warrant. Without limiting the generality of the
foregoing, the Company (a) will not increase the par value of any shares of
Common Stock receivable upon the exercise of this Warrant above the Exercise
Price then in effect, (b) will take all such action as may be necessary or
appropriate in order that the Company may validly and legally issue fully paid
and nonassessable shares of Common Stock upon the exercise of all Warrants from
time to time outstanding, (c) will not take any action which results in any
adjustment of the Exercise Price if the total number of shares of Common Stock
or Other Securities issuable after the action upon the exercise of all of the
Warrants would exceed the total number of shares of Common Stock or Other
Securities then authorized by the Company's certificate or articles of
incorporation and available for the purpose of issue upon such conversion, and
(d) will not issue any capital stock of any class which has the right to more
than one vote per share or any capital stock of any class which is preferred as
to dividends or as to the distribution of assets upon voluntary or involuntary
dissolution, liquidation or winding-up, unless the rights of the holders thereof
shall be limited to a fixed sum or percentage (or floating rate related to
market yields) of par value or stated value in respect of participation in
dividends and a fixed sum or percentage of par value or stated value in any such
distribution of assets.
3. Stock to be Reserved. The Company will at all times reserve and keep
available out of the authorized Common Stock, solely for the purpose of issue
upon the exercise of the Warrants as herein provided, such number of shares of
Common Stock as shall then be issuable upon the exercise of all outstanding
Warrants and the Company will maintain at all times all other rights and
privileges sufficient to enable it to fulfill all its obligations hereunder.
The Company covenants that all shares of Common Stock which shall be so issuable
shall, upon issuance, be duly authorized, validly issued, fully paid and
nonassessable, free from preemptive or similar rights on the part of the holders
of any shares of capital stock or securities of the Company or any other Person,
and free from all taxes, liens and charges with respect to the issue thereof
(not including any income taxes payable by the holders of Warrants being
exercised in respect of gains thereon), and the Exercise Price will be credited
to the capital and surplus of the Company. The Company will take all such
action as may be necessary to assure that such shares of Common Stock may be so
issued without violation of any applicable law or regulation, or of any
applicable requirements of the National Association of Securities Dealers, Inc.
and of any domestic securities exchange upon which the Common Stock may be
listed.
4. Registration of Common Stock. If any shares of Common Stock required
to be reserved for purposes of the exercise of Warrants require registration
with or approval of any governmental authority under any Federal or State law
(other than the Securities Act, registration under which is governed by the
Registration Rights
Page 15
Agreement), before such shares may be issued upon the exercise thereof, the
Company will, at its expense and as expeditiously as possible, use its best
efforts to cause such shares to be duly registered or approved, as the case may
be. Shares of Common Stock issuable upon exercise of the Warrants shall be
registered by the Company under the Securities Act or similar statute then in
force if required by the Registration Rights Agreement and subject to the
conditions stated in such agreement. At any such time as the Common Stock is
listed on any national securities exchange or quoted by the Nasdaq National
Market or any successor thereto or any comparable system, the Company will, at
its expense, obtain promptly and maintain the approval for listing on each such
exchange or quoting by the Nasdaq National Market or such successor thereto or
comparable system, upon official notice of issuance, the shares of Common Stock
issuable upon exercise of the then outstanding Warrants and maintain the listing
or quoting of such shares after their issuance so long as the Common Stock is so
listed or quoted; and the Company will also cause to be so listed or quoted,
will register under the Exchange Act and will maintain such listing or quoting
of, any Other Securities that at any time are issuable upon exercise of the
Warrants, if and at the time that any securities of the same class shall be
listed on such national securities exchange by the Company.
5. Issue Tax. The issuance of certificates for shares of Common Stock
upon exercise of this Warrant shall be made without charge to the holders hereof
for any issuance tax in respect thereto.
6. Closing of Books. The Company will at no time close its transfer
books against the transfer of any Warrant or of any share of Common Stock issued
or issuable upon the exercise of any Warrant in any manner which interferes with
the timely exercise of such Warrant.
7. No Rights or Liabilities as Stockholders. This Warrant shall not
entitle the holder thereof to any of the rights of a stockholder of the Company,
except as expressly contemplated herein. No provision of this Warrant, in the
absence of the actual exercise of such Warrant and receipt by the holder thereof
of Common Stock issuable upon such conversion, shall give rise to any liability
on the part of such holder as a stockholder of the Company, whether such
liability shall be asserted by the Company or by creditors of the Company.
8. Restrictive Legends. Except as otherwise permitted by this section 8,
each Warrant originally issued and each Warrant issued upon direct or indirect
transfer or in substitution for any Warrant pursuant to this section 8 shall be
stamped or otherwise imprinted with a legend in substantially the following
form:
"This Warrant and any shares acquired upon the exercise of this Warrant
have not been registered under the Securities Act of 1933 and may not be
transferred in the absence of such registration or an exemption therefrom
under such Act."
Except as otherwise permitted by this section 8, (a) each certificate for
Original Common Stock
Page 16
(or Other Securities) issued upon the exercise of any Warrant, and (b) each
certificate issued upon the direct or indirect transfer of any such Original
Common Stock (or Other Securities) shall be stamped or otherwise imprinted with
a legend in substantially the following form:
"The shares represented by this certificate have not been registered under
the Securities Act of 1933 and may not be transferred in the absence of
such registration or an exemption therefrom under such Act."
The holder of any Restricted Securities shall be entitled to receive from the
Company, without expense, new securities of like tenor not bearing the
applicable legend set forth above in this section 8 when such securities shall
have been (a) effectively registered under the Securities Act and disposed of in
accordance with the registration statement covering such Restricted Securities,
(b) sold pursuant to Rule 144 or any comparable rule under the Securities Act,
(c) transferred to a limited number of "qualified institutional buyers" (as such
term is defined in Rule 144A under the Securities Act), each of which shall have
represented in writing that it is acquiring such Restricted Securities for
investment and not with a view to the disposition thereof, or (d) when, in the
opinion (which opinion must be reasonably satisfactory to the Company and its
securities counsel) of independent counsel for the holder thereof experienced in
Securities Act matters, such restrictions are no longer required in order to
insure compliance with the Securities Act. The Company will pay the reasonable
fees and disbursements of counsel for any holder of Restricted Securities in
connection with all opinions rendered pursuant to this section 8.
9. Availability of Information. The Company will cooperate with each
holder of any Restricted Securities in supplying such information as may be
necessary for such holder to complete and file any information reporting forms
presently or hereafter required by the Commission as a condition to the
availability of an exemption from the Securities Act for the sale of any
Restricted Securities. The Company will furnish to each holder of any Warrants,
promptly upon their becoming available, copies of all financial statements,
reports, notices and proxy statements sent or made available generally by the
Company to its stockholders, and copies of all regular and periodic reports and
all registration statements and prospectuses filed by the Company with any
securities exchange or with the Commission.
10. Information Required By Rule 144A. The Company will, upon the request
of the holder of this Warrant, provide such holder, and any qualified
institutional buyer designated by such holder, such financial and other
information as such holder may reasonably determine to be necessary in order to
permit compliance with the information requirements of Rule 144A under the
Securities Act in connection with the resale of Warrants, except at such times
as the Company is subject to the reporting requirements of Section 13 or 15(d)
of the Exchange Act. For the purpose of this section 10, the term "qualified
institutional buyer" shall have the meaning specified in Rule 144A under the
Securities Act.
11. Registration Rights Agreement; Participation Rights Agreement. The
holder of this Warrant and the holders of any securities issued or issuable upon
the exercise hereof are each entitled to the benefits of the Registration Rights
Agreement and the Participation Rights Agreement.
Page 17
12. Ownership, Transfer and Substitution of Warrants.
12A. Ownership of Warrants. Except as otherwise required by law, the
Company may treat the Person in whose name any Warrant is registered on the
register kept at the principal office of the Company as the owner and holder
thereof for all purposes, notwithstanding any notice to the contrary except
that, if and when any Warrant is properly assigned in blank, the Company, in its
discretion, may (but shall not be obligated to) treat the bearer thereof as the
owner of such Warrant for all purposes, notwithstanding any notice to the
Company to the contrary. Subject to section 8, a Warrant, if properly assigned,
may be exercised by a new holder without first having a new Warrant issued.
12B. Transfer and Exchange of Warrants. Upon the surrender of any
Warrant, properly endorsed, for registration of transfer or for exchange at the
principal office of the Company, the Company at its expense will (subject to
compliance with section 8, if applicable) execute and deliver to or upon the
order of the holder thereof a new Warrant or Warrants of like tenor, in the name
of such holder or as such holder (upon payment by such holder of any applicable
transfer taxes) may direct, calling in the aggregate on the face or faces
thereof for the number of shares of Original Common Stock called for on the face
or faces of the Warrant or Warrants so surrendered.
12C. Replacement of Warrants. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of any
Warrant and, in the case of any such loss, theft or destruction of any Warrant
held by a Person other than the Purchaser or any institutional investor
reasonably satisfactory to the Company, upon delivery of its unsecured indemnity
reasonably satisfactory to the Company in form and amount or, in the case of any
such mutilation, upon surrender of such Warrant for cancellation at the
principal office of the Company, the Company at its expense will execute and
deliver, in lieu thereof, a new Warrant of like tenor.
13. Definitions. As used herein, unless the context otherwise requires,
the following terms have the following respective meanings:
"ACQUIRER'S COMMON STOCK"shall have the meaning specified in Section
2I.
"ACQUIRING COMPANY"shall have the meaning specified in Section 2I.
"ADDITIONAL SHARES OF COMMON STOCK" shall mean all shares (including
treasury shares) of Common Stock issued or sold (or, pursuant to section 2C or
2D deemed to be issued) by the Company after the date hereof, whether or not
subsequently reacquired or retired by the Company, other than (i) shares of
Common Stock issued upon the exercise or partial exercise of the Warrants, and
(ii) shares of Common Stock issued upon the exercise or partial exercise of the
Existing Warrants and the Existing Options.
Page 18
"ANNOUNCEMENT DATE" shall have the meaning specified in Section 2I.
"BUSINESS DAY" shall mean any day on which banks are open for business
in New York City (other than a Saturday, a Sunday or a legal holiday in the
States of New York or New Jersey), provided, that any reference to "days"
(unless Business Days are specified) shall mean calendar days.
"CASHLESS EXERCISE" shall have the meaning specified in section 1F.
"CHANGE NOTICE" shall have the meaning specified in section 1G.
"COMMISSION" shall mean the Securities and Exchange Commission or any
successor federal agency having similar powers.
"COMMON STOCK" shall mean the Original Common Stock, any stock into
which such stock shall have been converted or changed or any stock resulting
from any reclassification of such stock and all other stock of any class or
classes (however designated) of the Company the holders of which have the right,
without limitation as to amount, either to all or to a share of the balance of
current dividends and liquidating dividends after the payment of dividends and
distributions on any shares entitled to preference.
"COMPANY" shall mean Boots & Xxxxx International Well Control, Inc.
"CONSUMMATION DATE" shall have the meaning specified in section 2I.
"CONVERTIBLE SECURITIES" shall mean any evidences of indebtedness,
shares of stock (other than Common Stock) or other securities directly or
indirectly convertible into or exchangeable for Additional Shares of Common
Stock.
"EMPLOYEE OPTIONS" shall mean Options that are granted after the date
hereof to employees of the Company and its Subsidiaries for not more than
2,000,000 shares of Common Stock in the aggregate (appropriately adjusted for
stock splits, reverse stock splits, reclassifications and the like and with
shares in respect of Options that have expired without having been exercised
being excluded from the calculation of such aggregate number of shares from and
after such expiration) and that have an exercise price that is not less than the
Market Price in effect on the date of and immediately prior to such grant.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended.
"EXERCISE PRICE" shall have the meaning specified in section 1A.
"EXISTING OPTIONS" shall mean the Common Stock purchase options
outstanding on the date hereof and described on Schedule 9I to the Purchase
Agreement.
"EXISTING WARRANTS" shall mean the Common Stock purchase warrants
outstanding on the date hereof and described on Schedule 9I to the Purchase
Agreement.
Page 19
"FAIR VALUE" shall mean with respect to any securities or other
property, the fair value thereof as of a date which is within 15 days of the
date as of which the determination is to be made (a) determined by agreement
between the Company and the Required Holders, or (b) if the Company and the
Required Holders fail to agree, determined jointly by an independent investment
banking firm retained by the Company and by an independent investment banking
firm retained by the Required Holders, either of which firms may be an
independent investment banking firm regularly retained by the Company, or (c) if
the Company or the Required Holders shall fail so to retain an independent
investment banking firm within ten Business Days of the retention of such a firm
by the Required Holders or the Company, as the case may be, determined solely by
the firm so retained, or (d) if the firms so retained by the Company and by such
holders shall be unable to reach a joint determination within 15 Business Days
of the retention of the last firm so retained, determined by another independent
investment banking firm which is not a regular investment banking firm of the
Company chosen by the first two such firms.
"INITIAL DATE" shall have the meaning specified in section 2A.
"INITIAL EXERCISE PRICE" shall mean the $6.70 per share Exercise Price
specified in the introductory paragraph hereof, as the same may be unilaterally
changed pursuant to the provisions of section 1G hereof.
"MARKET PRICE" shall mean on any date specified herein, (a) with
respect to Common Stock or to common stock (or equivalent equity interests) of
an Acquiring Person or its Parent, the amount per share equal to (i) the last
sale price of shares of Common Stock, regular way, or of shares of such common
stock (or equivalent equity interests) on such date or, if no such sale takes
place on such date, the average of the closing bid and asked prices thereof on
such date, in each case as officially reported on the principal national
securities exchange on which the same are then listed or admitted to trading, or
(ii) if no shares of Common Stock or no shares of such common stock (or
equivalent equity interests), as the case may be, are then listed or admitted to
trading on any national securities exchange, the last sale price of shares of
Common Stock, regular way, or of shares of such common stock (or equivalent
equity interests) on such date, in each case or, if no such sale takes place on
such date, the average of the reported closing bid and asked prices thereof on
such date as quoted in the Nasdaq National Market or, if no shares of Common
Stock or no shares of such common stock (or equivalent equity interest), as the
case may be, are then quoted in the Nasdaq National Market, as published by the
National Quotation Bureau, Incorporated or any similar successor organization,
and in either case as reported by any member firm of the New York Stock Exchange
selected by the Company, or (iii) if no shares of Common Stock or no shares of
such common stock (or equivalent equity interests), as the case may be, are then
listed or admitted to trading on any national securities exchange or quoted or
published in the over-the-counter market, the higher of (x) the book value
thereof as determined by any firm of independent public accountants of
recognized standing selected by the Board of Directors of the Company, as of the
last day of any month ending within 60 days preceding the date as of which the
determination is to be made or (y) the Fair Value thereof; and (b) with respect
to any other securities, the Fair Value thereof.
Page 20
"NOTES" shall have the meaning specified in the opening paragraphs of
this Warrant.
"OFFICER'S CERTIFICATE" shall mean a certificate signed in the name of
the Company by its President, one of its Vice Presidents or its Treasurer.
"OPTIONS" shall mean rights, options or warrants, other than Existing
Options and Existing Warrants, to subscribe for, purchase or otherwise acquire
either Additional Shares of Common Stock or Convertible Securities.
"ORIGINAL COMMON STOCK" shall have the meaning specified in the
opening paragraphs of this Warrant.
"OTHER SECURITIES" shall mean any stock (other than Common Stock) and
any other securities of the Company or any other Person (corporate or otherwise)
which the holders of the Warrants at any time shall be entitled to receive, or
shall have received, upon the exercise of the Warrants, in lieu of or in
addition to Common Stock, or which at any time shall be issuable or shall have
been issued in exchange for or in replacement of Common Stock or Other
Securities pursuant to section 2I or otherwise.
"PARENT" shall have the meaning specified in section 2I.
"PARTICIPATION RIGHTS AGREEMENT" shall mean that certain Participation
Rights Agreement dated of even date herewith by and among the Purchaser, the
Company and certain holders of the Company's Common Stock who are parties
thereto.
"PERSON" shall mean and include an individual, a partnership, an
association, a joint venture, a corporation, a trust, a limited liability
company, an unincorporated organization and a government or any department or
agency thereof.
"PURCHASE AGREEMENT" shall have the meaning specified in the opening
paragraphs of this Warrant.
"PURCHASER" shall have the meaning specified in the opening paragraphs
of this Warrant.
"REGISTRATION RIGHTS AGREEMENT" shall mean the Registration Rights
Agreement dated of even date herewith by and between the Company and the
Purchaser.
"REQUIRED HOLDERS" shall mean the holders of at least 66__% of all the
Warrants at the time outstanding, determined on the basis of the number of
shares of Common Stock then purchasable upon the exercise of all Warrants then
outstanding.
"RESTRICTED SECURITIES" shall mean (a) any Warrants bearing the
applicable legend set forth in section 8 and (b) any shares of Original Common
Stock (or Other Securities) which
Page 21
have been issued upon the exercise of Warrants and which are evidenced by a
certificate or certificates bearing the applicable legend set forth in such
section, and (c) unless the context otherwise requires, any shares of Original
Common Stock (or other Securities) which are at the time issuable upon the
exercise of Warrants and which, when so issued, will be evidenced by a
certificate or certificates bearing the applicable legend set forth in such
section.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"TRANSACTION" shall have the meaning specified in section 2I.
"WARRANTS" shall have the meaning specified in the opening paragraphs
of this Warrant.
14. Remedies. The Company stipulates that the remedies at law of the
holder of this Warrant in the event of any default or threatened default by the
Company in the performance of or compliance with any of the terms of this
Warrant are not and will not be adequate and that, to the fullest extent
permitted by law, such terms may be specifically enforced by a decree for the
specific performance of any agreement contained herein or by an injunction
against a violation of any of the terms hereof or otherwise.
15. Notices. All notices or other communications provided for hereunder
shall be in writing and sent by first class mail or nationwide overnight
delivery service (with charges prepaid) and (a) if to any holder of any Warrant
or any holder of any Common Stock (or Other Securities), at the registered
address of such holder as set forth in the applicable register kept at the
principal office of the Company, or (b) if to the Company, at 0000 Xxx Xxxxxx,
Xxxxx 000, Xxxxxxx, Xxxxx 00000, Attention: Chief Financial Officer, or at such
other address, or to the attention of such other officer, as the Company shall
have furnished to each holder of Warrants at the time outstanding; provided,
that the exercise of any Warrant shall be effected only in the manner provided
in section 1.
16. Miscellaneous. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought. The agreements of the Company contained in this Warrant other than
those applicable solely to the Warrants and the holders thereof shall inure to
the benefit of and be enforceable by any holder or holders at the time of any
Common Stock (or Other Securities) issued upon the exercise of Warrants, whether
so expressed or not. This Warrant shall be construed and enforced in accordance
with and governed by the laws of the State of New York. The section headings in
this Warrant are for purposes of convenience only and shall not constitute a
part hereof.
BOOTS & XXXXX INTERNATIONAL
WELL CONTROL, INC.
By:
----------------------------------------
Name:
Title:
Page 22
FORM OF SUBSCRIPTION
(To be executed only upon exercise of Warrant)
To BOOTS & XXXXX INTERNATIONAL WELL CONTROL, INC.
The undersigned registered holder of the within Warrant hereby
irrevocably exercises such Warrant for, and purchases thereunder, _____/1/
shares of Original Common Stock of BOOTS & XXXXX INTERNATIONAL WELL CONTROL,
INC., [AND HEREWITH MAKES PAYMENT OF $_______________ THEREFOR]/2/ [IN A
CASHLESS EXERCISE PURSUANT TO SECTION 1F OF THE WITHIN WARRANT]/3/, and requests
that the certificates for such shares be issued in the name of, and delivered to
_________________________ whose address is.
/1/ Insert here the number of shares called for on the face of this Warrant
(or, in the case of a partial exercise, the portion thereof as to which
this Warrant is being exercised), in either case without making any
adjustment for additional Common Stock or any other stock or other
securities or property or cash which, pursuant to the adjustment provisions
of this Warrant, may be delivered upon exercise. In the case of a partial
exercise, a new Warrant or Warrants will be issued and delivered,
representing the unexercised portion of this Warrant, to the holder
surrendering the same.
/2/ Use in connection with an exercise involving a delivery of funds to the
Company.
/3/ Use in connection with a Cashless Exercise.
Dated:
(Signature must conform in all respects to
name of holder as specified on the face of
this Warrant)
(Street Address)
(City) (State) (Zip Code)
Page 23
FORM OF ASSIGNMENT
(To be executed only upon transfer of Warrant)
For value received, the undersigned registered holder of the within
Warrant hereby sells, assigns and transfers unto _________________________ the
right represented by such Warrant to purchase _________________________/1/
shares of Original Common Stock of BOOTS & XXXXX INTERNATIONAL WELL CONTROL,
INC., to which such Warrant relates, and; appoints _________________________
Attorney to make such transfer on the books of BOOTS & XXXXX INTERNATIONAL WELL
CONTROL, INC., maintained for such purpose, with full power of substitution in
the premises.
/1/ Insert here the number of shares called for on the face of the within
Warrant (or, in the case of a partial assignment, the portion thereof as to
which this Warrant is being assigned), in either case without making any
adjustment for additional Common Stock or any other stock or other
securities or property or cash which, pursuant to the adjustment provisions
of the within Warrant, may be delivered upon exercise. In the case of a
partial assignment, a new Warrant or Warrants will be issued and delivered,
representing the portion of the within Warrant not being assigned, to the
holder assigning the same.
Dated:
(Signature must conform in all respects to
name of holder as specified on the face of
this Warrant)
(Street Address)
(City) (State) (Zip Code)
Signed in the presence of:
