Exhibit 10.1
SUBSCRIPTION AGREEMENT This SUBSCRIPTION AGREEMENT
(this “Agreement”), dated as of January 9, 2009
(the “Closing Date”), is made by and between Vantage
Drilling Company, a Cayman Islands exempted company (the
“Company”), and F3 Capital, a Cayman Islands exempted
company, (the “Purchaser”). W I T N E S S E T H
WHEREAS, by that Contract for the Construction and Sale of
one Deepwater Drillship (Hull #3601, hereinafter referred to as the
“Platinum Explorer”) by and between Mandarin Drilling
Corporation (“Mandarin”), as Buyer, and Daewoo
Shipbuilding and Marine Engineering Company Ltd. dated September
13, 2007, Mandarin owns the Platinum Explorer. WHEREAS, by
that certain Sale Share and Purchase Agreement (the “Purchase
Agreement”) dated November 13, 2008 by and between Purchaser
and Vantage Deepwater Company, a Cayman Islands exempted company
and a wholly owned subsidiary of the Company
(“Deepwater”), Deepwater agreed to purchase 45% of the
outstanding capital shares of Mandarin for aggregate consideration
of USD$189,750,000. WHEREAS, by that certain Shareholder
Agreement to be entered into by and between Purchaser and Deepwater
(the “Shareholder Agreement”) as a condition to the
closing of the Purchase Agreement, Mandarin has the obligation to
post a bond in the amount of approximately USD$17,300,000 as a
performance guaranty in connection with that certain Oil and
Natural Gas Company of India Tender #MR/DS/MM/CT/DW –
7500/26(A)/2008/P46JC08001 (the “Performance Bond”).
WHEREAS, the Shareholder Agreement requires that Purchaser
fund 55% of the USD$17,300,000 cash collateral required for the
Performance Bond and that Deepwater fund 45% of the USD$17,300,000
cash collateral required for the Performance Bond. WHEREAS,
in order for Deepwater to raise the proceeds necessary to fund its
45% portion of the USD$17,300,000 cash collateral requirement for
the Performance Bond, Purchaser and the Company desire to
consummate a private placement of ordinary shares of the Company.
WHEREAS, upon the terms and subject to the conditions
hereinafter set forth, the Company desires to issue and sell to
Purchaser the Company’s ordinary shares, par value USD$0.001
per share (the “Purchased Shares”), and Purchaser
desires to subscribe for and purchase the Purchased Shares from the
Company; and NOW, THEREFORE, for and in consideration of the
foregoing and the respective representations, warranties,
covenants, and agreements hereinafter set forth, the parties hereto
hereby agree as follows: 1
ARTICLE I PURCHASE AND SALE OF PURCHASED SHARES
1.1 Purchase
and Sale of Purchased Shares. Subject to the terms and
conditions hereof, effective as of the Closing Date, Purchaser
hereby irrevocably subscribes for and purchases from the Company,
and the Company hereby issues and sells to Purchaser, the Purchased
Shares.
1.2 Amount
and Form of Consideration. The total consideration to be
paid by Purchaser to the Company in consideration of the issue and
sale of the Purchased Shares shall be Eight Million dollars
(USD$8,000,000 (the “Purchase Price”). The
number of Purchased Shares to be issued by the Company to the
Purchaser will be determined by dividing (a) the Purchase Price by
(b) the greater of (i) USD$0.80 or (ii) the average of the closing
price for the Company’s ordinary shares for the five (5)
trading days preceding the Closing Date. Purchaser shall
pay for the Purchased Shares in cash by wire transfer of
immediately available funds on the Closing Date.
1.3 The
Closing Date shall be January 9, 2009. ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER Purchaser
hereby represents and warrants to, and covenants and agrees with,
the Company as follows:
2.1 Authorization;
Enforceability.
(a) The
execution, delivery and performance by Purchaser of this Agreement
are within Purchaser’s lawful powers and have been duly
authorized by the board of directors, board of managers, general
partner, managing member or other applicable governing body of
Purchaser, and no other corporate or company action on the part of
Purchaser is necessary to authorize this Agreement.
(b) The
execution and delivery by Purchaser of this Agreement and
Purchaser’s performance of its obligations under this
Agreement (i) are within its corporate, company or partnership
power, (ii) have been duly authorized by all necessary corporate,
company or partnership action, (iii) do not require action by, or
filing with, any governmental authority or any action by any other
Person (other than any action taken or filing made on or before the
Closing Date), (iv) do not violate any provision of
Purchaser’s organizational documents, (v) do not violate
any material provision of law or any order of any governmental
authority, in each case applicable to Purchaser, (f) do not
violate, or constitute a breach of, any agreements to which it is a
party (and no default exists on the part of Purchaser under any
agreement to which it is a party), and (g) will not result in the
creation or imposition of any lien, security interest or
encumbrance on any asset of Purchaser.
(c) This
Agreement has been duly executed and delivered by Purchaser and
(assuming the due authorization, execution, and delivery by the
Company) this Agreement constitutes the legal, valid, and binding
obligation of Purchaser, enforceable against Purchaser in
accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, and similar laws
affecting creditors’ rights generally and by general
principles of equity (whether considered in a proceeding in equity
or at law), and except to the extent the indemnification provisions
contained herein may be limited by applicable federal or state
securities laws. 2
2.2 Securities
Matters. Purchaser understands and acknowledges that:
(a) the
Purchased Shares (i) and the offering relating to the Purchased
Shares have not been registered under the Securities Act of 1933,
as amended (the “Securities Act”) or any state
securities laws, (ii) based in part upon the representations made
by Purchaser in this Agreement, will be issued in reliance upon an
exemption from the registration and prospectus delivery
requirements of the Securities Act pursuant to Section 4(2) and/or
Regulation D thereof, (iii) will be issued in reliance upon
exemptions from the registration and prospectus delivery
requirements of state securities laws which relate to private
offerings, and (iv) will not have the protection of Section 11 of
the Securities Act;
(b) Purchaser
must therefore bear the economic risk of such investment
indefinitely unless a subsequent disposition thereof is registered
under the Securities Act and applicable state securities laws or is
exempt therefrom;
(c) such
exemptions depend upon, among other things, the bona fide nature of
the investment intent of Purchaser expressed herein;
(d) the
Purchased Shares (i) are “Restricted Securities” within
the meaning of Rule 144 under the Securities Act, (ii) are subject
to restrictions on transferability and resale and (iii) may not be
transferred or resold except as permitted under the Securities Act
and applicable state securities laws, pursuant to registration or
exemption therefrom;
(e) any
transfer of participations in the Purchased Shares or any
arrangement for an economic interest in the Purchased Shares to be
held or owned by anyone other than Purchaser will constitute a
violation of these representations and will be null and void; and
(f) &nbs
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