1
EXHIBIT 10.4
WARRANT
To Purchase Common Stock, $.01 par value, of
PONDER INDUSTRIES, INC.
Exercisable until March 2, 1998
THIS IS TO CERTIFY THAT, for value received, Eagle Management
Services Limited, or its assigns, is entitled to purchase from Ponder
Industries, Inc., a Delaware corporation (the "Company"), from 9:00 a.m.,
local time, on January 2, 1996 until 5:00 p.m., local time, on March 2, 1998,
(the "Exercise Period") at the place where the Warrant Office is located, up
to 500,000 shares of Common Stock, $.01 par value of the Company (the "Common
Stock"), at a purchase price of $1 per share, such purchase price subject to
adjustment (the "Current Warrant Price"), and is entitled also to exercise the
other appurtenant rights, powers and privileges hereinafter set forth. This
Warrant is granted in connection with the purchase by the holder of 750,000
shares of the Common Stock of the Company made on December 22, 1995.
Certain terms used in this Warrant are defined in Article VI.
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ARTICLE I
EXERCISE OF WARRANT
1.1 Method of Exercise. To exercise this Warrant in whole or in part,
the holder hereof shall during the Exercise Period deliver to the Company, at
the Warrant Office designated pursuant to Section 2.1: (a) a written notice
(in the form of Exhibit A) of such holder's election to exercise this Warrant,
which notice shall specify the number of shares of Common Stock to be
purchased; (b) a certified or bank cashier's check payable to the order of the
Company in an amount equal to the aggregate Current Warrant Price for the
number of shares of Common Stock being purchased; and (c) this Warrant.
Subject to the satisfaction of Article III, the Company shall, as promptly as
practicable and in any event within 14 days thereafter, execute and deliver or
cause to be executed and delivered, in accordance with said notice, a
certificate or certificates representing the aggregate number of shares of
Common Stock specified in said notice. The stock certificate or certificates
so delivered shall be in denominations of 100 shares each or such lesser or
greater denominations as may be specified in said notice and shall be issued
in the name of such holder or such other name as shall be designated in said
notice. If this Warrant shall have been exercised only in part, the Company
shall, at the time of delivery of the certificate or certificates, deliver to
the holder a new Warrant evidencing the rights to purchase the remaining
shares of Common Stock called for by this Warrant, which new Warrant shall in
all other respects be identical with this Warrant, or, at the request of the
holder, appropriate notation may be made on this Warrant which shall be
returned to the holder. The Company shall pay all expenses, taxes and other
charges payable in connection with the preparation,
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issuance and delivery of stock certificates and new Warrants, except that, in
case stock certificates or new Warrants shall be registered in a name or names
other than the name of the holder of this Warrant, funds sufficient to pay all
stock transfer taxes, which shall be payable upon the issuance of stock
certificates or new Warrants, shall be paid by the holder hereof at the time
of delivering the notice of exercise mentioned above or promptly upon receipt
of a written request of the Company for payment.
1.2 Warrant Shares to be Fully Paid and Nonassessable. All shares of
Common Stock issued upon the exercise of this Warrant shall be validly issued,
fully paid and nonassessable.
1.3 No Fractional Shares to be Issued. The Company shall not be
required upon any exercise of this Warrant to issue a certificate representing
any fraction of a share of Common Stock, but, in lieu thereof, shall pay to
the holder of this Warrant cash in the amount equal to a corresponding
fraction (calculated to the nearest 1/100 of a share) of the Current Market
Price of one share of Common Stock as of the date of receipt by the Company of
notice of exercise of this Warrant.
1.4 Legend on Warrant and Warrant Shares. Any warrant issued at any
time in exchange or substitution of this Warrant, unless at the time of
exchange or substitution the Warrant or Warrant Shares are registered under
the 1933 Act, or there is an exemption from registration.
Each certificate evidencing Warrant Shares issued upon exercise of
this Warrant, unless at the time of exercise or transfer the Warrant or such
Warrant Shares are registered under the 1933 Act, or an exemption is
available, shall bear a legend (and any additional
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legend required by any national securities exchanges upon which such Warrant
Shares may, at the time of such exercise, be listed).
ARTICLE II
WARRANT OFFICE; TRANSFER,
DIVISION OR COMBINATION OF WARRANTS
2.1 Warrant Office. The Company shall maintain an office for certain
purposes specified herein (the "Warrant Office"), which office shall initially
be the Company's office at 511 Commerce Road, Alice, Texas 78333, and may
subsequently be such other office of the Company or of any transfer agent of
the Common Stock in the continental United States as to which written notice
has previously been given to all of the Warrantholders.
2.2 Ownership of Warrant. The Company may deem and treat the person
in whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall not be affected by any
notice to the contrary, until presentation of this Warrant for registration of
transfer as provided in this Article II.
2.3 Transfer of Warrant. The Company agrees to maintain at the
Warrant Office books for the registration of permitted transfer of the
Warrants, and this Warrant and all rights hereunder are transferable, in whole
or in part, on the books at that office, upon surrender of this Warrant at
that office, together with a written assignment of this Warrant (in the form
of Exhibit B) duly executed by the holder hereof or his duly authorized agent
or attorney and funds sufficient to pay any transfer taxes payable upon the
making of the transfer. Upon surrender and payment, the Company shall execute
and deliver a new
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Warrant or Warrants in the name of the assignee or assignees and in the
denominations specified in the instrument of assignment, and this Warrant
shall promptly be canceled.
2.4 Division or Combination of Warrants. This Warrant may be divided
or combined with other Warrants upon presentation hereof and of any Warrant or
Warrants with which this Warrant is to be combined at the Warrant Office,
together with a written notice specifying the names and denominations in which
new Wan-ants are to be issued, signed by the holders hereof and thereof or
their respective duty authorized agents or attorneys. Subject to compliance
with Section 2.3 as to any transfer which may be involved in the division or
combination, the Company shall execute and deliver a new Warrant or Warrants
in exchange for the Warrant or Warrants to be divided or combined in
accordance with the notice.
2.5 Expenses of delivery of Warrants. The Company shall pay all
expenses, taxes (other than transfer taxes), and other charges payable in
connection with the preparation, issuance and delivery of Warrants hereunder.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the Holder.
(a) The holder represents and warrants to the Company that
it is acquiring the Warrant and, in the event that it should acquire Warrant
Shares upon exercise of the Warrant, that the holder will be acquiring the
Warrant Shares, for its own account, for investment and not with a view to the
distribution thereof within the meaning of the 1933 Act.
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(b) The holder understands that the Warrant has not been,
and the Warrant Shares issuable upon exercise of the Warrant may not be,
registered under the 1933 Act, by reason of their issuance by the Company in a
transaction exempt from the registration requirements of the 1933 Act; and
that the Warrant and the Warrant Shares must be held by the holder
indefinitely unless a subsequent disposition thereof is registered under the
1933 Act or is exempt from registration.
(c) The holder further understands that the exemption from
registration afforded by Rule 144 (the provisions of which are known to the
holder) promulgated under the 1933 Act depends on the satisfaction of various
conditions, and that, if applicable, Rule 144 may afford the basis for sales
only in limited amounts.
(d) The holder further represents and warrants that it is an
"accredited investor" as defined in Rule 501(a) promulgated under the 1933
Act.
ARTICLE IV
ADJUSTMENT PROVISIONS
4.1 Adjustment of Number of Shares.
Upon each adjustment of the Current Wan-ant Price as
provided in Section 4.2, the holder of this Warrant shall thereafter be
entitled to purchase, at the Current Warrant Price resulting from such
adjustment, the number of shares (calculated to the nearest I / I 00 of a
share) obtained by multiplying the Current Warrant Price in effect immediately
prior to such adjustment by the number of shares purchasable pursuant hereto
immediately prior to such adjustment and dividing the product thereof by the
Current Warrant Price resulting from such adjustment.
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4.2 Adjustment of Current Warrant Price. The Current Warrant Price
shall be subject to adjustment from time to time as follows:
(a) If, at any time subsequent to the date of the issue of
this Warrant and prior to the expiration of the Exercise Period, the
number of shares of Common Stock outstanding is increased by a stock
dividend payable in shares of Common Stock or by a subdivision or
split-up of shares of Common Stock, then immediately after the record
date fixed for the determination of holders of Common Stock entitled
to receive such stock dividend, subdivision or split-up, the Current
Warrant Price shall be appropriately decreased so that the number of
shares of Common Stock issuable on exercise of the Warrant shall be
increased in proportion to such increase in outstanding shares.
(b) If, at any time subsequent to the date of the issue of
this Warrant and prior to the expiration of the Exercise Period, the
number of shares of Common Stock outstanding is decreased by a
combination of the outstanding shares of Common Stock, then
immediately after the record date for such combination, the Current
Warrant Price shall be appropriately increased so that the number of
shares of Common Stock issuable on exercise of the Warrant shall be
decreased in proportion to such decrease in outstanding shares.
(c) In case the Company, at any time subsequent to the date
of the issue of this Warrant and prior to the expiration of the
Exercise Period, shall distribute to all holders of its Common Stock
evidences of its indebtedness or assets (excluding any regular cash
dividend) or rights to subscribe for or warrants to purchase
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(excluding those referred to in paragraph (d) below) shares of Common
Stock, then in each such case the Current Warrant Price shall be
adjusted so that the same shall equal the price determined by
multiplying the Current Warrant Price in effect immediately prior to
the date of such distribution by a fraction whose numerator shall be
the Current Market Price on the record date for the distribution less
the fair market value (as determined in good faith by the Board of
Directors) of the portion of the assets or evidences of indebtedness
so distributed or of such subscription rights or warrants applicable
to one share of Common Stock, and whose denominator shall be such
Current Market Price. Such adjustment shall be made whenever any such
distribution is made and shall be retroactively effective as of
immediately after the record date for the determination of
stockholders entitled to receive such distribution.
(d) In case the Company, at any time subsequent to the date
of the issue of this Warrant and prior to the expiration of the
Exercise Period, shall issue any warrants, rights or options to
subscribe for or purchase shares of Common Stock or shall issue any
Common Stock, other than pursuant to warrants, rights or options
outstanding on the date of the issue of this Warrant, or securities
convertible into Common Stock at a price per share less than the
Current Market Price (as defined in Article VI), the Current Warrant
Price shall be adjusted by multiplying the then existing Current
Warrant Price by a fraction, the numerator of which is the sum of (i)
the number of shares of Common Stock outstanding immediately prior to
such issue plus (ii) the number of shares which the aggregate
offering price of the total number of shares so offered pursuant to
the warrants, rights, options or convertible
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securities would purchase at the Current Market Price and the
denominator of which is the sum of (i) the number of shares of Common
Stock outstanding immediately prior to such issue plus (ii) the
maximum number of additional shares of Common Stock offered for
subscription or purchase or issuable upon conversion of convertible
securities offered for subscription or purchase. For the purpose of
the foregoing computation, the aggregate offering price of the shares
of Common Stock issuable upon exercise of convertible securities
shall be deemed to be the consideration paid to the Company in
respect of the purchase of such convertible securities plus the
additional consideration, if any, payable to the Company upon the
exercise of the right of conversion or exchange in such convertible
securities. For the purpose of any adjustment of the Current Warrant
Price pursuant to this paragraph in the case of an issue of any of
the aforementioned securities for a purchase price other than cash,
the consideration received by the Company therefor shall be deemed to
be the fair value of such consideration as determined in good faith
by the Board of Directors. Adjustments pursuant to this paragraph
shall become effective immediately after the issuance of such
warrants, rights, options or Common Stock or convertible securities;
provided that if such warrants, rights, options or the rights of
conversion of such convertible securities shall expire without being
exercised, the Current Warrant Price shall be recomputed as if the
total number of shares of Common Stock so offered pursuant to the
warrants, rights, options or convertible securities were that number
of shares actually issued upon the exercise or conversion.
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(e) In case, during the Exercise Period, of any capital
reorganization, or any reclassification of the stock of the Company
(other than a change in par value or from par value to no par value
or from no par value to par value or as a result of a stock dividend
or subdivision, split-up or combination of shares), or the
consolidation or merger of the Company with or into another person
(other than a consolidation or merger in which the Company is the
continuing corporation and the Common Stock of the Company remains
outstanding and unchanged) or of the sale or other disposition of all
or substantially all the properties and assets of the Company as an
entirety to any other person, the Warrant shall after such
reorganization, reclassification, consolidation, merger, sale or
other disposition be exercisable for the kind and number of shares of
stock or other securities or property of the Company, or of the
corporation resulting from such consolidation or surviving such
merger or to which such properties and assets shall have been sold or
otherwise disposed, to which the holder of the number of shares of
Common Stock deliverable (immediately prior to the time of such
reorganization, reclassification, consolidation, merger, sale or
other disposition) upon exercise of the Warrant would have been
entitled upon such reorganization, reclassification, consolidation,
merger, sale or other disposition. The provisions of this paragraph
shall similarly apply to successive reorganizations,
reclassifications, consolidations, mergers, sales or other
dispositions.
(f) All calculations under this Section 4.2 shall be made to
the nearest cent ($.01) or to the nearest 1/100 of a share, as the
case may be.
(g) In any case in which the provisions of this Section 4.2
shall require that
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an adjustment shall become effective immediately after a record date
for an event, the Company may defer until the occurrence of such
event (i) issuing to the holder of the Warrant exercised after such
record date and before the occurrence of such event the additional
shares of capital stock issuable upon such exercise by reason of the
adjustment required by such event over and above the shares of
capital stock issuable upon such exercise before giving effect to
such adjustment and (ii) paying to such holder any amount in cash in
lieu of a fractional share of capital stock pursuant to Section 1.3
above; provided, however, that the Company shall deliver to such
holder a due bill or other appropriate instrument evidencing such
holder's right to receive such additional shares, and such cash, upon
the occurrence of the event requiring such adjustment. 4.3 Notice of
Adjustment of Current Warrant Price.
(a) Whenever the Current Warrant Price shall be adjusted as
provided in Section 4.2 above, the Company shall forthwith file, at
the office of the transfer agent for the Company, or at such other
place as may be designated by the Company, a statement, signed by its
independent certified public accountants, showing in detail the facts
requiring such adjustment and the Current Warrant Price that shall be
in effect after such adjustment. The Company shall also cause a copy
of such statement to be sent by first-class, certified mail, return
receipt requested, postage prepaid, to the holder of the Warrant at
such holder's address appearing on the Company's records. Where
appropriate, such copy may be given in advance and may be included as
part of a notice required to be mailed under the provisions of
Section
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4.3(b) below.
(b) In the event the Company shall propose to take any
action of the types described in Section 4.2 (a), (b), (c), (d) or
(e) the Company shall give notice to the holder of the Warrant in the
manner set forth in Section 4.3(a) above, which notice shall specify
the record date, if any, with respect to any such action and the date
on which such action is to take place. Such notice shall also set
forth such facts with respect thereto as shall be reasonably
necessary to indicate the effect of such action (to the extent such
effect may be known at the date of such notice) on the Current
Warrant Price and the number, kind or class of shares or other
securities or property which shall be deliverable or purchasable upon
the occurrence of such action or deliverable upon exercise of the
Warrant. In the case of any action which would require the fixing of
a record date, such notice shall be given at least seven days prior
to the date so fixed, and in case of all other action, such notice
shall be given at least 15 days prior to the taking of such proposed
action. Failure to give such notice, or any defect therein, shall not
affect the legality or validity of any such action.
(c) Anything herein to the contrary notwithstanding, no
adjustment in the Current Warrant Price shall be required unless such
adjustment would require a change of at least 1% in the Current
Warrant Price; provided, that any adjustments which by reason of this
Section 4.3(c) are not required to be made shall be carried forward
and taken into account in any subsequent adjustment.
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ARTICLE V.
REGISTRATION RIGHTS
5.1 Registration Rights.
(a) If the Warrantholder requests the Company in writing to
register at least 50% of the Warrant Shares under the 1933 Act (which
request shall specify that it is being made pursuant to this Article
V and shall contain the undertaking of the Warrantholder to provide
all such information and to take all such action as may be required
in order to permit the Company to comply with all applicable
requirements of the 1933 Act and the Commission and to obtain
acceleration of the effective date of the registration statement),
the Company will cause the offering of Warrant Shares designated in
such request to be registered under the 1933 Act as soon as
practicable. Upon any such registration statement becoming effective,
the Company shall keep such registration statement current for a
period not to exceed nine months. The Company shall make such
filings, and will use its best efforts to cause such filings to
become effective, so that the Warrant Shares shall be registered or
qualified for sale under the securities or Blue Sky laws of such
jurisdictions as shall be requested by the Warrantholder and the
managing underwriter, if any, for the distribution of the Warrant
Shares covered by such registration statement; provided, that the
Company shall not be required to qualify as a foreign corporation to
do business under the laws of any jurisdiction in which it is not
then qualified or to file any general consent to service of process.
(b) If the Company shall at any time propose the
registration under the
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1933 Act of an offering of Common Stock solely for cash on a form
that would also permit registration of the Warrant Shares, the
Company shall give notice to the Warrantholder as promptly as
possible of such proposed registration and the Company will cause the
offering of such number of Warrant Shares as the Warrantholder shall
request within 10 business days after the receipt of such notice to
be included, upon the same terms (including the method of
distribution), in any such offering; provided, that: (i) the Company
shall not be required to give notice or to include Warrant Shares in
any such registration if the proposed registration is (A) a
registration of a dividend reinvestment, stock option, employee
benefit or compensation plan or of securities issued or issuable
pursuant to any such plan or (B) a registration of securities
proposed to be issued in exchange for securities or assets of, or in
connection with a merger or consolidation with, another entity; (ii)
if the Company is advised in writing by its underwriters that the
inclusion of all or any portion of such Warrant Shares would in their
opinion jeopardize the success of the proposed offering, the Company
may exclude all or such portion of such Warrant Shares from
registration, provided that if other selling shareholders who are
employees or directors of the Company have requested registration of
securities in the proposed offering, the Company will reduce or
eliminate such other selling shareholders' securities before any
reduction of Warrant Shares; (iii) the offering of such Warrant
Shares by the Warrantholder shall be on the same terms as the
offering by the Company; and (iv) the Company may, without the
consent of the Warrantholder, withdraw such registration statement
and abandon the proposed
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offering in which the Warrantholder had requested to participate.
(c) The obligation of the Company under this Section 5.1 is
subject to the following limitations:
(i) In the event of a registration under this Section 5.1
the Company shall be responsible for all costs of such registration,
including, without limitation, all printing expenses (including a
reasonable number of prospectuses for circulation by the
Warrantholder), all legal fees and disbursements of the Company's
counsel, Blue Sky expenses, accounting fees of the Company and
filing fees, but not including underwriters' discounts and
commissions attributable to the Warrant Shares;
(ii) The Company shall not be obligated to provide
more than one registration pursuant to paragraph (a) or more than one
registration pursuant to paragraph (b); provided, that in the event
any Warrant Shares are excluded in an initial registration pursuant
to paragraph (b) or in the event such registration is withdrawn or
abandoned by the Company, the Warrantholder shall have additional
registration rights pursuant to such subsection until such time as
the Warrant Shares originally proposed to be registered thereunder
have been registered pursuant to this Section; and
(iii) The Company, the Warrantholder and any
underwriter of an offering pursuant to any registration statement
provided for in paragraph (b) shall have entered into an underwriting
agreement containing provisions with respect to
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the indemnification of the aforementioned parties in connection with
the preparation and use of such registration statement in form and
substance satisfactory to the Company and such underwriters.
ARTICLE VI
CERTAIN DEFINITIONS
For all purposes of this Warrant, unless the context otherwise
requires, the following terms shall have the following respective meanings:
"1933 Act": the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder, all
as the same shall be in effect at the time.
"Commission": the Securities and Exchange Commission, or any
other federal agency then administering the 1933 Act.
"Common Stock": the Company's authorized Common Stock, par
value $0.01 per share, as such class existed on the date of issuance
of this Warrant and any other securities as to which this Warrant
becomes exercisable pursuant to Article IV.
"Current Market Price" per share of Common Stock at any
date: the average of the daily closing prices for the 30 consecutive
business days ending no more than 15 days before the day in question
(as adjusted for any stock dividend, split-up, combination or
reclassification that took effect during such 30 business day
period). The closing price for each day shall be the last reported
sales price regular way or, if no such reported sales took place on
such day, the average of the last reported bid and asked prices
regular way, in either case on the principal national securities
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exchange on which the Common Stock is listed or admitted to trading.
If the Common Stock is not at that time listed or admitted for
trading on any such exchange, then the closing price for each day
shall be the last trade price or, if no such trade took place on such
day, the average of the last reported bid and asked prices, in either
case as reported by the National Association of Securities Dealers
Automated Quotations System ("NASDAQ") on such day (but if on any
such day the security shall not be quoted on NASDAQ, then such price
shall be equal to the last reported bid and asked prices on such day
as reported by the National Quotation Bureau, Inc., or, if not
reported by it, by any similar reputable quotation and reporting
service). If the Common Stock is not traded in such a manner that any
quotation referred to in this paragraph is available for the period
required hereunder, then the Current Market Price shall be deemed to
be the greater of (i) the Current Warrant Price or (ii) such price,
if any, at which the most recent issue and sale by the Company of
Common Stock in an arm's length transaction took place within the
180- day period prior to the date on which the Current Market Price
is to be determined; provided, however, that in case the Company
makes an underwritten public offering of shares of Common Stock, for
purposes of the adjustment, if any, pursuant to Article IV, the
Current Market Price with respect to such shares shall be deemed to
be the price to the public shown in the final prospectus used in
connection with such public offering.
"Current Warrant Price": See the first paragraph on page 1.
"Exchange Act": the Securities Exchange Act of 1934, as
amended, and the
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rules and regulations of the Commission promulgated thereunder, all as
the same shall be in effect at the time.
"Outstanding": when used with reference to Common Stock at any
date, all issued shares of Common Stock (including, but without
duplication, shares deemed issued pursuant to Article IV) at such date,
except shares then held in the treasury of the Company.
"Person": any individual, corporation, partnership, trust,
unincorporated organization and any government, and any political
subdivision, instrumentality or agency thereof.
"Sell": as to the Warrant or the Warrant Shares, shall mean
to sell or in any other way directly or indirectly transfer, assign,
distribute, encumber or otherwise dispose of, either voluntarily or
involuntarily.
"Warrant Office": see Section 2. 1.
"Warrant Shares": the shares of Common Stock purchasable or
purchased by the holder upon the exercise of this Warrant.
"Warrantholders": the registered holder of a Warrant or
Warrants or any related Warrant Shares.
"Warrants": this warrant and all warrants issued in
substitution, combination or subdivision thereof.
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ARTICLE VII
CERTAIN COVENANTS OF THE COMPANY
The Company covenants and agrees that:
(a) it will reserve and set apart and have at all times,
free from preemptive rights, a number of shares of authorized but
unissued Common Stock or other securities or property deliverable
upon the exercise of the Warrants sufficient to enable it at any time
to fulfill all its obligations hereunder.
(b) this Warrant shall be binding, and it will take all
action necessary to make this War-rant binding, upon any corporation
succeeding to the Company by merger, share exchange, consolidation,
acquisition of all or substantially all of the Company's assets or
any similar transaction.
ARTICLE VIII
MISCELLANEOUS
8.1 Entire Agreement. This Warrant contains the entire agreement
between the Warrantholder and the Company with respect to the purchase of the
Warrant Shares and supersedes all prior arrangements or understandings with
respect thereto.
8.2 Governing Law. This Warrant shall be governed by and
construed in accordance with the laws of the State of Texas.
8.3 Waiver and Amendment. Any term or provision of this Wan-ant may
be waived at any time by the party which is entitled to the benefits thereof
and any term or provision of this Warrant may be amended or supplemented at
any time by agreement of the Warrantholder and the Company, except that any
waiver of any term or condition, or
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any amendment or supplement, of this Warrant must be in writing. A waiver of
any breach or failure to enforce any of the terms or conditions of this
Warrant shall not in any way affect, limit or waive a party's rights hereunder
at any time to enforce strict compliance thereafter with any term or condition
of this Warrant.
8.4 Illegality. In the event that any one or more of the provisions
contained in this Warrant shall be determined to be invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in any other respect and the remaining
provisions of this Warrant shall not, at the election of the party for whom
the benefit of the provision exists, be in any way impaired.
8.5 Filing of Warrant. A copy of this Warrant shall be filed in
the records of the Company.
8.6 Notice. Any notice or other document required or permitted to be
given or delivered to the Warrantholders shall be delivered personally, or
sent by certified or registered mail, to each such holder at the last address
shown on the books of the Company maintained at the Warrant Office for the
registration of, and the registration of transfer of, the Warrants or at any
more recent address of which any Warrantholder shall have notified the Company
in writing. Any notice or other document required or permitted to be given or
delivered to the Company, other than such notice or documents required to be
delivered to the Warrant Office, shall be delivered at, or sent by certified
or registered mail to, the office of the Company at 511 Commerce Road, Alice,
Texas 78333, attention: President, or such other address within the United
States of America as shall have been furnished by the Company to the
Warrantholders and the holders of record of Warrant Shares.
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8.7 Limitation of Liability; Not Stockholders. No provision of this
Warrant shall be construed as conferring upon the holder hereof the right to
vote, consent, receive dividends or receive notice, other than as herein
expressly provided, in respect of meetings of stockholders for the election of
directors of the Company or any other matter whatsoever as a stockholder of
the Company. No provision hereof, in the absence of affirmative action by the
holder hereof to purchase shares of Common Stock, and no mere enumeration
herein of the rights or privileges of the holder hereof, shall give rise to
any liability of such holder for the purchase price of any Warrant Shares or
as a stockholder of the Company, whether such liability is asserted by the
Company or by creditors of the Company.
8.8 Loss, Destruction, Etc. of Warrants. Upon receipt of evidence
satisfactory to the Company of the loss, theft, mutilation or destruction of
any Warrant, and in the case of any such loss, theft or destruction, upon
delivery of a bond of indemnity in such form and amount as shall be reasonably
satisfactory to the Company, or in the event of such mutilation, upon
surrender and cancellation of the Warrant, the Company will make and deliver a
new Warrant, of like tenor, in lieu of such lost, stolen, destroyed or
mutilated Warrant. Any Warrant issued under the provisions of this Section 8.8
in lieu of any Warrant alleged to be lost, destroyed or stolen, or in lieu of
any mutilated Warrant, shall constitute an original contractual obligation on
the part of the Company.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
in its name by its President.
DATED: 15th day of January, 1996.
PONDER INDUSTRIES, INC.
By: /s/ Larry Armstrong, President
Larry Armstrong President
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EXHIBIT A
SUBSCRIPTION NOTICE
Ponder Industries, Inc.
The undersigned, the holder of the foregoing Warrant, hereby elects
to exercise purchase rights represented by said Warrant for, and to purchase
thereunder, _________ shares of the Common Stock covered by said Warrant and
herewith makes payment in full therefor of $500,000 by certified or official
bank check payable to the order of the Company, and requests (a) that
certificates for such shares (and any securities or other property issuable
upon such exercise) be issued in the name of and delivered to Eagle Management
Services Limited whose address is ____________________________ and (b) if such
shares shall not include all of the shares issuable as provided in said
Wan-ant, that a new Warrant of like tenor and date for the balance of the
shares issuable thereunder be delivered to the undersigned.
Eagle Management Services Limited
By: /s/ William Vincent Walker
Signature Guaranteed:
Dated:
April 15, 1996
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EXHIBIT B
ASSIGNMENT
FOR VALUE RECEIVED,the undersigned hereby sells, assigns and
transfers unto __________________________________________ the rights
to ________ shares of Common Stock represented by the foregoing
Warrant of Ponder Industries, Inc., and appoints
________________________________________ attorney to transfer said
rights on the books of said corporation, with full power of
substitution.