Exhibit 4.1
WARRANT
AGREEMENT
This Warrant Agreement (the “
Agreement ”) made as of June 12, 2008, between Vantage
Drilling Company, a Cayman Islands exempted company, with its
registered office at c/o Maples Corporate Services Limited, PO
Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands
(the “ Company ”), and Continental Stock
Transfer & Trust Company, a New York corporation, with
offices at 17 Battery Place, New York, New York 10004 (the “
Warrant Agent ”).
WHEREAS, in connection with the Company’s
acquisition agreement with F3 Capital for ordinary shares of
Offshore Group Investment Limited and merger agreement with Vantage
Energy Services, Inc., a Delaware corporation
(“Vantage”), the Company is offering (the “
Offering ”) to exchange units of the Company (the
“ Units ”), for units of Vantage with
substantially identical terms;
WHEREAS, each Unit consists of one ordinary
share, par value $.001 per share, of the Company (the “
Common Stock ”) and one warrant exercisable for one
share of Common Stock (the “ Warrants
”);
WHEREAS, the Company has filed, with the
Securities and Exchange Commission (the “ Commission
”), a registration statement, No. 333-147797, on
Form S-4 (the “ Registration Statement ”)
for the registration, under the Securities Act of 1933, as amended
(the “ Act ”), of the Units, Common Stock and
Warrants included in the Units and the Common Stock issuable upon
exercise of the Warrants;
WHEREAS, the Company desires the Warrant Agent
to act on behalf of the Company, and the Warrant Agent is willing
to so act, in connection with the issuance, registration, transfer,
exchange, redemption, exercise and cancellation of the
Warrants;
WHEREAS, the Company desires to provide for the
form and provisions of the Warrants, the terms upon which they
shall be issued and exercised, and the respective rights,
limitation of rights and immunities of the Company, the Warrant
Agent and the holders of the Warrants; and
WHEREAS, all acts and things have been done and
performed which are necessary to make the Warrants, when executed
on behalf of the Company and countersigned by or on behalf of the
Warrant Agent, as provided herein, the legally valid and binding
obligations of the Company, and to authorize the execution and
delivery of this Agreement.
NOW, THEREFORE, in consideration of the mutual
agreements herein contained, the parties hereto agree as
follows:
1.
Appointment of Warrant Agent. The Company
hereby appoints the Warrant Agent to act as agent for the Company
for the Warrants, and the Warrant Agent hereby accepts such
appointment and agrees to perform the same in accordance with the
terms and conditions set forth in this Agreement.
2.
Warrants
.
2.1
Form of Warrant. Each Warrant shall be
issued in registered form only, shall be in substantially the form
of Warrant attached hereto as Exhibit A , the
provisions of which are incorporated herein, and shall be signed
by, or bear the facsimile signature of, (i) the Chairman of
the Board, the Chief Executive Officer or the President, and
(ii) the Treasurer, Secretary or Assistant Secretary of the
Company, and shall bear a facsimile of the Company’s seal. In
the event the person whose facsimile signature has been placed upon
any Warrant shall have ceased to serve in the capacity in which
such person signed the Warrant before such Warrant is issued, it
may be issued with the same effect as if he or she had not ceased
to be such at the date of issuance.
2.2
Effect of Countersignature. Unless and until
countersigned by the Warrant Agent pursuant to this Warrant
Agreement, a Warrant shall be invalid and of no effect and may not
be exercised by the holder thereof.
2.3
Registration.
2.3.1 Warrant Register.The Warrant Agent
shall maintain books (“ Warrant Register ”), for
the registration of the original issuance and registration of
transfers of the Warrants. Upon the initial issuance of the
Warrants, the Warrant Agent shall issue and register the Warrants
in the names of the respective holders thereof in such
denominations and otherwise in accordance with instructions
delivered to the Warrant Agent by the Company.
2.3.2 Registered Holder.Prior to due
presentment for registration of transfer of any Warrant, the
Company and the Warrant Agent may deem and treat the person in
whose name such Warrant shall be registered upon the Warrant
Register (“ registered holder ”), as the
absolute owner of such Warrant and of each Warrant represented
thereby (notwithstanding any notation of ownership or other writing
on the warrant certificate made by anyone other than the Company or
the Warrant Agent), for the purpose of any exercise thereof, and
for all other purposes, and neither the Company nor the Warrant
Agent shall be affected by any notice to the contrary.
2.4
Intentionally Left Blank
2.5
The Private Warrants and Representative’s
Warrants. The Warrants issued by Vantage to Deutsche
Bank Securities, Inc. (the “ Representative
”) or its designees (the “ Representatives
Warrants ”) shall have the same terms and be in the same
form as the Warrants except (i) with respect to the Warrant
Price as set forth below in Section 3.1 hereof and
(ii) the Representative’s Warrants may be exercised on
cashless basis. The Warrants issued by Vantage to the founders of
Vantage (the “ Private Warrants ”) shall have
the same terms and be in the same form as the Warrants issued by
Vantage in its initial public offering except (i) with respect
to the restrictions on transferability pursuant to Section 5.6
of that certain securities escrow agreement (the “ Escrow
Agreement ”) of even date herewith and (ii) the
Private Warrants are not subject to redemption as set forth in
Section 6.5 hereof.
3.
Terms and Exercise of Warrants.
3.1
Warrant Price. Each Warrant shall, when
countersigned by the Warrant Agent, entitle the registered holder
thereof, subject to the provisions of such Warrant and of this
Agreement, to subscribe for the Company the number of shares of
Common Stock stated therein, at a subscription price of $6.00 per
whole share, subject to the adjustments provided in Section 4
hereof and in the last sentence of this Section 3.1. Each
Representative’s Warrant shall, when countersigned by the
Warrant Agent, entitle the registered holder thereof, subject to
the provisions of such Representative’s Warrant and of this
Agreement, to subscribe for the Company the number of shares of
Common Stock stated therein, at a subscription price of $7.20 per
whole share, subject to the adjustments provided in Section 4
hereof and in the last sentence of this Section 3.1. The term
“ Warrant Price ” as used in this Agreement
refers to the price per share at which Common Stock may be
purchased at the time a Warrant is exercised. The Company, in its
sole discretion, may lower the Warrant Price at any time prior to
the Expiration Date (as defined below); provided, however, that any
change in the Warrant Price must apply equally to all of the
Warrants, except that any amendment to the term of the
Representative’s Warrants shall be subject to any limitations
and conditions that may be imposed by NASD Corporate Finance
Rule 2710, and provided further that any reduction in Warrant
Price shall remain in effect for at least twenty (20) business
days.
3.2
Duration of Warrants. Except as set forth in
this Section 3.2, a Warrant may be exercised at any time prior
to 5:00 p.m., New York City time, on the earlier to occur of
(i) May 24 2011 and (ii) the date fixed for
redemption of the Warrants as provided in Section 6 of this
Agreement (“ Expiration Date ”). Notwithstanding
the foregoing, the Private Warrants (i) may not be sold
or
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otherwise transferred until June 12, 2009 and
(ii) will not be subject to redemption so long as they are
held by the founders. Except with respect to the right to receive
the Redemption Price (as set forth in Section 6 hereunder),
each Warrant not exercised on or before the Expiration Date shall
become void, and all rights thereunder and all rights in respect
thereof under this Agreement shall cease at the close of business
on the Expiration Date. The Company, in its sole discretion, may
extend the duration of the Warrants by delaying the Expiration
Date; provided, however, that any such extension of the duration of
the Warrants shall apply equally to all of the Warrants, except
that any amendment to the terms of the Representative’s
Warrants shall be subject to any limitations and conditions that
may be imposed by NASD Corporate Finance Rule 2710. Should the
Company wish to extend the Expiration Date of the Warrants, the
Company shall provide at least twenty (20) days advance notice
to the American Stock Exchange of such extension.
Notwithstanding the foregoing, a Warrant can
expire unexercised regardless of whether a registration statement
is current under the Act with respect to the Common Stock issuable
upon exercise of the Warrants.
3.3
Exercise of Warrants.
3.3.1 Payment.
Subject to the provisions of the Warrant and this Warrant
Agreement, a Warrant, when countersigned by the Warrant Agent, may
be exercised by the registered holder thereof by surrendering it,
at the office of the Warrant Agent, or at the office of its
successor as Warrant Agent, in the Borough of Manhattan, City and
State of New York, with the subscription form, as set forth in the
Warrant, duly executed, and by paying in full, in lawful money of
the United States, in cash, good certified check or good bank draft
payable to the order of the Company (or as otherwise agreed to by
the Company), the Warrant Price for each whole share of Common
Stock as to which the Warrant is exercised and any and all
applicable taxes due in connection with the exercise of the
Warrant, the exchange of the Warrant for the Common Stock, and the
issuance of the Common Stock.
3.3.2 Issuance of Certificates.
As soon as practicable after the exercise of any
Warrant and the clearance of the funds in payment of the Warrant
Price, the Company shall issue to the registered holder of such
Warrant a certificate or certificates representing the number of
full shares of Common Stock to which he, she or it is entitled,
registered in such name or names as may be directed by him, her or
it, and, if such Warrant shall not have been exercised in full, a
new countersigned Warrant for the number of shares as to which such
Warrant shall not have been exercised.
3.3.3 Limitations.
Notwithstanding the foregoing, and except with respect to the
Private Warrants, the Company shall not be obligated to issue any
shares of Common Stock pursuant to the exercise of a Warrant and
shall have no obligation to settle the Warrant exercise unless a
registration statement under the Act with respect to the shares of
Common Stock underlying a Warrant is effective and a current
Prospectus is on file with the Commission. Except with respect to
the Private Warrants, in the event that a registration statement
with respect to the shares of Common Stock underlying a Warrant is
not effective under the Act or a current Prospectus is not on file
with the Commission, the holder of such Warrant shall not be
entitled to exercise such Warrant. Notwithstanding anything to the
contrary in this Agreement, under no circumstances will the Company
be required to net cash settle the exercise of the Warrants.
Warrants may not be exercised by, or shares of Common Stock
underlying the Warrants issued to, any registered holder in any
jurisdictions in which such exercise or issuance would be unlawful.
For the avoidance of doubt, as a result of this Section 3.3.3,
any or all of the Warrants may expire unexercised. In no event
shall the registered holder of a Warrant be entitled to receive any
monetary damages if the shares of Common Stock
3
underlying the Warrants have not been
registered by the Company pursuant to an effective registration
statement or if a current prospectus is not on file with the
Commission, provided the Company has fulfilled its obligation to
use its best efforts to effect such registration and ensure a
current prospectus is on file with the Commission.
3.3.4 Valid Issuance.
All shares of Common Stock issued upon the proper exercise of a
Warrant in conformity with this Agreement shall be validly issued,
fully paid and nonassessable.
3.3.5 Date of Issuance.
Each person or entity in whose name any warrant
certificate for shares of Common Stock is issued shall, for all
purposes, be deemed to have become the holder of record of such
shares on the date on which the Warrant was exercised and
surrendered and payment of the Warrant Price was made and the name
of the person or entity was entered into the Register of Members of
the Company, irrespective of the date of delivery of such
certificate.
4.
Adjustments.
4.1
Stock Dividends—Split-Ups. If, after the
date hereof, and subject to the provisions of Section 4.6
below, the number of outstanding shares of Common Stock is
increased by a stock dividend payable in shares of Common Stock, or
by a split-up of shares of Common Stock, or other similar event,
then, on the effective date of such stock dividend, split-up or
similar event, the number of shares of Common Stock issuable on
exercise of each Warrant shall be increased in proportion to such
increase in outstanding shares of Common Stock.
4.2
Extraordinary Dividends. If the Company, at
any time during the Exercise Period, shall pay a dividend or make a
distribution in cash, securities or other assets to the holders of
Common Stock, other than (i) as described in
Sections 4.1, 4.3 or 4.5 or (ii) regular quarterly or
other periodic dividends or (any such non-excluded event being
referred to herein as an “ Extraordinary Dividend
”), then the Warrant Price shall be decreased, effective
immediately after the effective date of such Extraordinary
Dividend, by the amount of cash and/or the fair market value (as
determined by the Company’s Board of Directors, in good
faith) of any securities or other assets paid on each share of
Common Stock in respect of such Extraordinary Dividend.
4.3
Aggregation of Shares. If after the date
hereof, and subject to the provisions of Section 4.6, the
number of outstanding shares of Common Stock is decreased by a
consolidation, combination, reverse stock split or reclassification
of shares of Common Stock or other similar event, then, on the
effective date of such consolidation, combination, reverse stock
split, reclassification or similar event, the number of shares of
Common Stock issuable on exercise of each Warrant shall be
decreased in proportion to such decrease in outstanding shares of
Common Stock.
4.4
Adjustments in Exercise Price. Whenever the
number of shares of Common Stock that may be issued upon the
exercise of the Warrants is adjusted, as provided in
Sections 4.1, 4.2 and 4.3 above, the Warrant Price shall be
adjusted (to the nearest cent) by multiplying such Warrant Price,
immediately prior to such adjustment, by a fraction, (i) the
numerator of which shall be the number of shares of Common Stock
that may be issued upon the exercise of the Warrants immediately
prior to such adjustment, and (ii) the denominator of which
shall be the number of shares of Common Stock so that may be issued
immediately thereafter.
4.5
Replacement of Securities upon Reorganization, etc.
In case of any reclassification or reorganization of the
outstanding shares of Common Stock (other than a change covered by
Sections 4.1, 4.2 or 4.3 hereof), or, in the case of any
merger or consolidation of the Company with or into another
corporation (other than a consolidation or merger in which the
Company is the continuing corporation and that does not result in
any reclassification or reorganization of the
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outstanding shares of Common Stock), or, in the
case of any sale or conveyance to another corporation or entity of
the assets or other property of the Company as an entirety or
substantially as an entirety, in connection with which the Company
is dissolved, the Warrant holders shall thereafter have the right
to purchase and receive, upon the basis and upon the terms and
conditions specified in the Warrants and in lieu of the shares of
Common Stock of the Company immediately theretofore receivable upon
the exercise of the rights represented thereby, the kind and amount
of shares of stock or other securities or property (including cash)
receivable upon such reclassification, reorganization, merger or
consolidation, or upon a dissolution following any such sale or
transfer, that the Warrant holder would have received if such
Warrant holder had exercised his, her or its
Warrant(s) immediately prior to such event; and if any
reclassification also results in a change in shares of Common Stock
covered by Sections 4.1, 4.2 or 4.3, then such adjustment
shall be made pursuant to Sections 4.1, 4.2, 4.3, 4.4 and this
Section 4.5. The provisions of this Section 4.5 shall
similarly apply to successive reclassifications, reorganizations,
mergers or consolidations, sales or other transfers.
4.6
Notices of Changes in Warrant. Upon
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