EXHIBIT 10.14
NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE
HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD, OFFERED FOR SALE, ASSIGNED,
TRANSFERRED OR OTHERWISE DISPOSED OF, UNLESS REGISTERED
PURSUANT TO THE PROVISIONS OF THAT ACT OR AN OPINION OF COUNSEL
TO THE COMPANY IS OBTAINED STATING THAT SUCH DISPOSITION IS IN
COMPLIANCE WITH AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION.
WARRANT NO. M-7
FOR THE PURCHASE OF SHARES OF
COMMON STOCK
OF
MITCHAM INDUSTRIES, INC.
1. TERM OF WARRANT. THIS CERTIFIES THAT, for value received, Bear Ridge Capital,
L.L.C., and its successors and assigns (individually, the "Holder" and
collectively, the "Holders"), as registered owner of this Warrant (the
"Warrant") is entitled, at any time during the period beginning on July 18, 2002
and expiring at 5:00 p.m., Houston, Texas time, on July 18, 2007 (the
"Expiration Date"), but not thereafter (unless otherwise expressly provided
herein), to subscribe for, purchase and receive, in whole or in part, up to
20,000 duly authorized, validly issued, fully paid and nonassessable shares of
common stock, par value $0.01 per share (the "Common Stock") of Mitcham
Industries, Inc. (the "Company"). If the Expiration Date is a day on which
banking institutions are authorized by law to close, then this Warrant may be
exercised on the next succeeding day which is not such a day in accordance with
the terms herein. During the period this Warrant is outstanding, the Company
agrees not to take any action that would terminate this Warrant.
2. EXERCISE OF WARRANT.
2.1 EXERCISE PRICE AND EXERCISE FORM. This Warrant may initially be
exercised at a price of $5.00 per share of Common Stock; provided, however, that
on the occurrence of any of the events specified in Section 7 hereof, the rights
granted by this Warrant, including the exercise price per share of Common Stock
and the number of shares of Common Stock to be received upon such exercise,
shall be adjusted as therein specified. The term "Exercise Price" shall mean the
initial exercise price or the adjusted exercise price, depending on the context.
In order to exercise this Warrant, the exercise form attached hereto must be
duly executed and completed and delivered to the Company, together with this
Warrant and, except as otherwise provided in Section 2.3, with payment of the
Exercise Price in cash for the shares of Common Stock being purchased. As
promptly as practicable on or after such date (and in any event within 10 days
thereafter), the Company at its expense shall issue and deliver to the person or
persons entitled to receive the same a certificate or certificates for the
number of shares issuable upon such exercise.
If the subscription rights represented hereby are not exercised at or before
5:00 p.m., Houston, Texas time, on the Expiration Date, this Warrant shall
become and be void without further force or effect, and all rights represented
hereby shall cease and expire.
2.2 LEGEND. Each certificate for securities purchased under this
Warrant shall bear a legend as follows unless such securities have been
registered under the Securities Act of 1933, as amended (the "Act"):
"The securities represented by this certificate have not been
registered under the Securities Act of 1933 (the "Act"). The
securities may not be offered for sale, sold or otherwise
transferred except pursuant to an effective registration
statement under the Act, or pursuant to an exemption from
registration under the Act."
2.3 CONVERSION RIGHT. In lieu of the payment of the Exercise Price, the
Holder(s) shall have the right (but not the obligation), to require the Company
to convert this Warrant, in whole or in part, into shares of Common Stock (the
"Conversion Right") as provided for in this Section. Upon exercise of the
Conversion Right, the Company shall deliver to the Holder(s) (without a cash
payment by the Holder(s) of any of the Exercise Price) that number of shares of
Common Stock equal to the quotient obtained by dividing (x) the "Value" (as
defined below) of the portion of the Warrant being converted at the time the
Conversion Right is exercised by (y) the Market Price (as defined in Section
7.2.5) immediately prior to the exercise of the Conversion Right. The "Value" of
the portion of the Warrant being converted shall mean the difference between (a)
the Exercise Price multiplied by the number of shares of Common Stock being
converted; and (b) the Market Price multiplied by the number of shares of Common
Stock being converted.
3. RESTRICTIONS ON TRANSFER.
3.1 GENERAL RESTRICTIONS. In order to make any permitted assignment,
the Holder must deliver to the Company the assignment form attached hereto duly
executed and completed, together with the Warrant and payment of all transfer
taxes, if any, payable in connection therewith. The Company shall immediately
transfer this Warrant on the books of the Company and shall execute and deliver
a new Warrant or Warrants of like tenor to the appropriate assignee(s) expressly
evidencing the right to purchase the numbers of shares of Common Stock
purchasable hereunder or such portion of such number as shall be contemplated by
any such assignment.
3.2 RESTRICTIONS IMPOSED BY THE ACT. On the date hereof, the shares of
Common Stock issuable upon exercise of this Warrant (the "Warrant Stock") are
not registered under the Act. The Warrant Stock shall not be transferred unless
and until (i) the Company has received the opinion of counsel for the Holder(s)
that the securities may be sold pursuant to an exemption from registration under
the Act, the availability of which is established to the reasonable satisfaction
of the Company; or (ii) a registration statement relating to such securities has
been filed by the Company and declared effective by the Securities and Exchange
Commission.
2
4. NEW WARRANTS TO BE ISSUED.
4.1 PARTIAL EXERCISE OR TRANSFER. Subject to the restrictions in
Section 3 hereof, this Warrant may be exercised or assigned in whole or in part.
In the event of the exercise or assignment hereof in part only, upon surrender
of this Warrant for cancellation, together with the duly executed exercise or
assignment form and funds sufficient to pay any transfer tax, the Company shall
cause to be delivered to the Holder(s) without charge a new Warrant of like
tenor to this Warrant in the name of the Holder evidencing the right of the
Holder(s) to purchase the number of shares of Common Stock purchasable hereunder
as to which this Warrant has been exercised or assigned.
4.2 LOST CERTIFICATE. Upon receipt by the Company of evidence
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant
and of reasonably satisfactory indemnification, the Company shall execute and
deliver to the Holder(s) a new Warrant of like tenor and date. Any such new
Warrant executed and delivered as a result of such loss, theft, mutilation or
destruction shall constitute an additional contractual obligation on the part of
the Company.
4.3 DIVISIBILITY OF WARRANT. This Warrant may be divided into warrants
representing one share of Warrant Stock or multiples thereof, upon surrender at
the principal office of the Company without charge to any Holder. Upon any such
division, and, if permitted by Section 3 and in accordance with the provisions
thereof, such Warrants may be transferred of record to a name other than that of
the Holder(s) of record; provided, however, that the Holder shall be required to
pay any and all transfer taxes with respect thereto.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents and
warrants to the Holder(s) hereof as follows:
5.1 CORPORATE AND OTHER ACTION. The Company has all requisite corporate
power and authority and has taken all necessary corporate action to authorize,
execute, issue, deliver and perform pursuant to the terms of this Warrant, to
authorize and reserve for issuance and, upon payment from time to time of the
Exercise Price, to issue, sell and deliver the Warrant Stock issuable on the
exercise of this Warrant and to perform all of its obligations under this
Warrant. The Warrant Stock, when issued in accordance with this Warrant, will be
duly authorized and validly issued and outstanding, fully paid and nonassessable
and free of all liens, claims, encumbrances and preemptive rights. This Warrant
has been duly executed and delivered by the Company and is a legal, valid and
binding agreement of the Company, enforceable in accordance with its terms. No
authorization, approval, consent or other order of any governmental entity,
regulatory authority or other third party is required for such authorization,
execution, issuance, delivery, performance or sale.
5.2 NO VIOLATION. The execution and delivery of this Warrant, the
consummation of the transactions herein contemplated and the compliance with the
terms and provisions hereof and thereof, will not conflict with, or result in a
breach of, or constitute a default or an event permitting acceleration under,
any statute, the Articles of Incorporation or Bylaws of the Company, or any
indenture, mortgage, deed of trust, note, bank loan, credit agreement,
franchise, license, lease, permit, or any other agreement, understanding,
instrument, judgment, decree,
3
order, statute, rule or regulation to which the Company is a party or by which
it is or may be bound.
6. REGISTRATION RIGHTS.
6.1 PIGGYBACK REGISTRATION RIGHTS. If before the Expiration Date, the
Company proposes to file any other registration statement under the Act with
respect to the offering of Common Stock (other than a registration relating
solely to employee benefit plans, in connection with a corporate reorganization
or other transaction on Form S-4, or a registration on any registration form
that does not permit sales by the Holder(s)), the Company shall in each case
give written notice of such proposed filing to the Holder(s) of the Warrant
Stock, at least 30 days before the earlier of the anticipated or the actual
effective date of the registration statement and at least 10 days before the
initial filing of such registration statement. Such notice shall offer to such
parties the opportunity to include in such registration statement such number of
shares of Warrant Stock as they may request. Holder(s) desiring inclusion of
Warrant Stock in such registration statement shall so inform the Company by
written notice, given within 10 days of the giving of such notice by the Company
and in accordance with the provisions of Section 10.1 hereof. The Company shall
permit, or shall cause the managing underwriter of a proposed offering to
permit, the holders of Warrant Stock requested to be included in the
registration to include such securities in the proposed offering on the same
terms and conditions as applicable to any similar securities of the Company, if
any, included therein for the account of any person other than the Company and
the Holder(s) of Warrants and/or Warrant Stock. The Company shall continuously
maintain in effect any registration statement with respect to which the Warrant
Stock has been requested to be included (and so included) for a period of not
less than (i) 180 days after the effectiveness of such registration statement;
or (ii) the consummation of the distribution by the holders of the Warrant Stock
("Piggyback Termination Date"); provided, however, that if, at the Piggyback
Termination Date, the Warrant Stock is covered by a registration statement which
is, or is required to remain, in effect beyond the Piggyback Termination Date,
the Company shall maintain in effect the registration statement as it relates to
the Warrant Stock for so long as such registration statement remains or is
required to remain in effect for any of such other securities. All expenses of
such registration shall be borne by the Company, except that underwriting
discounts, selling commissions and expenses attributable to the Warrant Stock
and fees and disbursements of counsel (if any) to the Holder(s) requesting that
the Warrant Stock be offered will be borne by such Holder(s).
6.2 OTHER MATTERS. In connection with the registration of Warrant Stock
in accordance with Sections 6.1 above, the Company agrees to:
(a) Use its best efforts to register or qualify the Warrant
Stock for offer or sale under state securities or Blue Sky laws of such
jurisdictions in which the Holder(s) of such Warrants and/or Warrant
Stock shall reasonably designate; provided, however, that in no event
shall the Company be obligated to qualify to do business in any
jurisdiction where it is not then so qualified, or to take any action
which would subject it to general service of process or taxation in any
jurisdiction where it is not then so subject;
(b) Enter into indemnity and contribution agreements, each in
customary form, with each underwriter, if any, and each holder of
Warrant Stock included in such
4
registration statement; and, if requested, enter into an underwriting
agreement containing customary representations, warranties, covenants,
allocation of expenses, and customary closing conditions including, but
not limited to, opinions of counsel and accountants' cold comfort
letters with any underwriter who participates in the offering of
Warrant Stock; and
(c) Pay all expenses in connection with the registration of
the Warrants and/or Warrant Stock under the Act and in compliance with
the provisions of Section 6.2(a) above.
In connection with the registration of Warrant Stock in accordance with Section
6.1 above, the Holder(s) of Warrant Stock agree to enter into an underwriting
agreement containing customary representations, warranties, covenants,
allocation of expenses (not otherwise inconsistent with this Warrant), and
customary closing conditions, with any underwriter who participates in the
offering of Warrant Stock.
6.3 INDEMNIFICATION. The Company shall indemnify the Holder(s) of the
Warrant Stock to be sold pursuant to any registration statement hereunder and
each person, if any, who controls such Holder(s) within the meaning of Section
15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), against all loss, claim, damage, expense or
liability (including all reasonable attorneys' fees and other expenses
reasonably incurred in investigating, preparing or defending against any claim
whatsoever) to which any of them may become subject under the Act, the Exchange
Act or otherwise, arising from such registration statement, but only to the same
extent and with the same effect as the provisions pursuant to which the Company
has agreed to indemnify the managing underwriter of the offering, if any,
pursuant to the Underwriting Agreement. The Holder(s) of the Warrant Stock to be
sold pursuant to such registration statement, and their successors and assigns,
shall severally, and not jointly, indemnify the Company, its officers and
directors and each person, if any, who controls the Company within the meaning
of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss,
claim, damage, expense or liability (including all reasonable attorneys' fees
and other expenses reasonably incurred in investigating, preparing or defending
against any claim whatsoever) to which they may become subject under the Act,
the Exchange Act or otherwise, arising from information furnished by or on
behalf of such Holder(s), or their successors or assigns, in writing, for
specific inclusion in such registration statement to the same extent and with
the same effect as the provisions contained in the Underwriting Agreement
pursuant to which the underwriter has agreed to indemnify the Company.
6.4 RIGHT TO INFORMATION. The Company will provide to the Holder(s), on
a timely basis, copies of all documents and reports filed with the Securities
and Exchange Commission (the "Commission") and publicly available annual and
quarterly financial statements.
6.5 RULE 144. With a view to making available to the Holder(s) the
benefits of certain rules of the Commission that may permit the sale of shares
of Warrant Stock to the public without registration, the Company hereby
covenants and agrees to use its reasonable best efforts to file in a timely
manner all reports and other documents required to be filed by it under the Act
and the Exchange Act and the rules and regulations adopted by the Commission
thereunder necessary to permit sales under Rule 144 under the Act, and the
Company will take such further
5
action which does not have material cost to the Company to the extent required
from time to time to enable the Holder(s) of Warrant Stock to sell shares of
Warrant Stock (whether or not any such securities have been the subject of a
piggyback request pursuant to the agreement set forth in Section 6.1 hereof)
without registration under the Act within the limitation of the exemptions
provided by (a) Rule 144 under the Act, as amended from time to time; or (b) any
similar rule or regulation hereafter adopted by the Commission. Upon the written
request of a Holder, the Company will deliver to such Holder a written statement
as to whether it has complied with such requirements.
7. ADJUSTMENTS TO EXERCISE PRICE AND NUMBER OF SHARES OF COMMON STOCK
PURCHASABLE.
7.1 COMPUTATION OF ADJUSTED EXERCISE PRICE; ISSUANCE OR SALE OF
ADDITIONAL COMMON STOCK. Except as hereinafter provided, subject to Section 7.3,
if the Company at any time after the date hereof, issues or sells any shares of
Common Stock, including shares held in the Company's treasury and shares of
Common Stock issued upon the exercise of any options, rights or warrants to
subscribe for shares of Common Stock and shares of Common Stock issued upon the
direct or indirect conversion or exchange of securities for shares of Common
Stock, for a consideration per share less than either the Exercise Price or the
Market Price (as defined in Section 7.2.5) in effect immediately prior to the
issuance or sale of such shares, or without consideration, then immediately upon
such issuance or sale, the Exercise Price shall (until another such issuance or
sale) be reduced to the price determined by dividing (x) an amount equal to the
sum of (1) the number of shares of Common Stock outstanding immediately prior to
such issue or sale multiplied by the lesser of the Exercise Price or Market
Price in effect immediately before such issuance or sale, plus (2) the
consideration received by the Company upon such issue or sale by (y) the
aggregate number of shares of Common Stock outstanding immediately after such
issue or sale.
7.2 GENERAL RULES FOR COMPUTATION OF ADJUSTMENTS. For the purposes of
any reduction to be made in accordance with Section 7.1, the following
provisions shall apply:
7.2.1 CASH CONSIDERATION. In case of the issuance or sale of
shares of Common Stock for a consideration part or all of which is cash, the
amount of the cash consideration therefor shall be deemed to be the amount of
cash received by the Company for such shares (or, if shares of Common Stock are
offered by the Company for subscription, the subscription price, or, if either
of such securities are sold to underwriters or dealers for public offering
without a subscription offering, the initial public offering price), before
deducting therefrom any compensation paid or discount allowed in the sale,
underwriting or purchase thereof by underwriters or dealers or others performing
similar services, or any expenses incurred in connection therewith.
7.2.2 OTHER THAN CASH CONSIDERATION. In case of the issuance
or sale (other than as a dividend or other distribution on any stock of the
Company) of shares of Common Stock for a consideration part or all of which is
other than cash, the amount of the consideration therefor other than cash shall
be deemed to be the value of such consideration as determined in good faith by
the Board of Directors of the Company.
6
7.2.3 SHARE DIVIDENDS. Shares of Common Stock issuable by way
of dividend or other distribution on any stock of the Company shall be deemed to
have been issued immediately after the opening of business on the day following
the record date for the determination of shareholders entitled to receive such
dividend or other distribution and shall be deemed to have been issued without
consideration.
7.2.4 RECLASSIFICATION. The reclassification of securities of
the Company other than shares of Common Stock into securities, including shares
of Common Stock, shall be deemed to involve the issuance of such shares of
Common Stock for a consideration other than cash immediately prior to the close
of business on the date fixed for the determination of security holders entitled
to receive such shares, and the value of the consideration allocable to such
shares of Common Stock shall be determined as provided in Section 7.2.2.
7.2.5 MARKET PRICE. As used herein, the term "Market Price" at
any date shall be deemed to be the average of the last reported sale prices for
the last 10 trading days, in either case as officially reported by the principal
securities exchange on which the Common Stock is listed or admitted to trading,
or, if the Common Stock is not listed or admitted to trading on any national
securities exchange or if any such exchange on which the Common Stock is listed
is not its principal trading market, the average closing bid price for the last
10 trading days as furnished by the NASD as quoted on the Nasdaq National Market
or SmallCap Market, the OTC Bulletin Board or similar organization, or, if the
Common Stock is not quoted on the Nasdaq National Market or SmallCap Market or
the OTC Bulletin Board, as determined in good faith by resolution of the Board
of Directors of the Company based on the best information available to it.
7.3 ISSUANCE OF OPTIONS, RIGHTS, WARRANTS AND CONVERTIBLE AND
EXCHANGEABLE SECURITIES. If the Company at any time after the date hereof,
issues options, rights or warrants to subscribe for shares of Common Stock, or
issues any securities convertible into or exchangeable for shares of Common
Stock, for a consideration per share less than either the Exercise Price or the
Market Price in effect immediately prior to the issuance of such options, rights
or warrants, or such convertible or exchangeable securities, or without
consideration, the Exercise Price in effect immediately prior to the issuance of
such options, rights or warrants, or such convertible or exchangeable
securities, as the case may be, shall be reduced to a price determined by making
a computation in accordance with the provisions of Section 7.1 hereof, and the
general rules of Section 7.2 shall likewise apply as if Common Stock issuable
under such options, rights or warrants or securities convertible into or
exchangeable for shares of Common Stock were issued and outstanding.
7.4 SUBDIVISION AND COMBINATION. If the Company at any time subdivides
or combines the outstanding shares of Common Stock, the Exercise Price shall
immediately be proportionately decreased in the case of subdivision or increased
in the case of combination.
7.5 ADJUSTMENT IN NUMBER OF SHARES OF COMMON STOCK PURCHASABLE. Upon
each adjustment of the Exercise Price pursuant to the provisions of this Section
7, the number of shares of Common Stock issuable upon the exercise of this
Warrant shall be adjusted to the nearest full number by multiplying the Exercise
Price in effect immediately prior to such adjustment by the number of shares of
Common Stock issuable upon exercise of this Warrant
7
immediately prior to such adjustment, and dividing the product so obtained by
the adjusted Exercise Price.
7.6 DEFINITION OF COMMON STOCK. For the purpose of this Warrant, the
term "Common Stock" shall mean (i) the class of stock designated as Common Stock
in the Articles of Incorporation of the Company, as may be amended as of the
date hereof, or (ii) any other class of stock resulting from successive changes
or reclassification of such Common Stock consisting solely of changes in par
value, or from par value to no par value, or from no par value to par value. If
the Company after the date hereof issues securities with greater or superior
voting rights than the shares of Common Stock outstanding as of the date hereof,
the Holder(s), at their option, may receive upon exercise of this Warrant either
shares of Common Stock or a like number of such securities with greater or
superior voting rights.
7.7 MERGER OR CONSOLIDATION. If there is any consolidation of the
Company with, or merger of the Company with, or merger of the Company into,
another corporation (other than a consolidation or merger which does not result
in any reclassification or change of the outstanding Common Stock), the
corporation formed by such consolidation or merger shall execute and deliver to
the Holder a supplemental Warrant providing that the holder of this Warrant
shall have the right thereafter (until the stated expiration of such Warrant) to
receive, upon exercise of such Warrant, the kind and amount of shares of stock
and other securities and property receivable upon such consolidation or merger,
by a holder of the number of shares of Common Stock of the Company for which
such Warrant might have been exercised immediately before such consolidation,
merger, sale or transfer. Such supplemental Warrant shall provide for
adjustments which shall be identical to the adjustments provided in this Section
7. The above provision of this Section shall similarly apply to successive
consolidations or mergers.
7.8 NO ADJUSTMENT OF EXERCISE PRICE IN CERTAIN CASES. No adjustment of
the Exercise Price shall be made if the amount of said adjustment would be less
than one cent ($.01) per share of Common Stock; provided, however, that in such
case, any adjustment that would otherwise be required then to be made shall be
carried forward and shall be made at the time together with the next subsequent
adjustment which, together with any adjustment so carried forward, shall amount
to at least one cent ($.01) per share of Common Stock.
7.9 DIVIDENDS AND OTHER DISTRIBUTIONS. If the Company at any time prior
to the exercise of all or any portion of this Warrant, declares a dividend
(other than a dividend consisting solely of shares of Common Stock) or otherwise
distributes to its shareholders any assets, property, rights, evidences of
indebtedness, securities (other than shares of Common Stock), whether issued by
the Company or by another, or any other thing of value, the Holder(s) of the
unexercised Warrant shall thereafter be entitled to receive upon the exercise of
such Warrant, in addition to the shares of Common Stock or other securities and
property receivable upon the exercise thereof, the same property, assets,
rights, evidences of indebtedness, securities or any other thing of value that
they would have been entitled to receive at the time of such dividend or
distribution as if the Warrant had been exercised immediately prior to such
dividend or distribution. At the time of any such dividend or distribution, the
Company shall make appropriate reserves to ensure the timely performance of the
provisions of this Section 7.9.
8
7.10 ELIMINATION OF FRACTIONAL INTERESTS. The Company shall not be
required to issue certificates representing fractions of shares of Common Stock
upon the exercise of this Warrant, nor shall it be required to issue scrip or
pay cash in lieu of any fractional interests, it being the intent of the parties
that all fractional interests shall be eliminated by rounding any fraction up to
the nearest whole number of shares of Common Stock or other securities,
properties or rights.
7.11 NO IMPAIRMENT. The Company will not, by any voluntary action,
avoid or seek to avoid the observance or performance of any of 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 of the provisions of this Section 7 and
in the taking of all such action as may be necessary or appropriate in order to
protect the rights of the Holder(s) of this Warrant against impairment.
7.12 COMPANY TO PREVENT DILUTION. In case at any time or from time to
time conditions arise by reason of action taken by the Company, which in the
opinion of its Board of Directors, are not adequately covered by the provisions
of this Section 7, and which might materially and adversely affect the exercise
rights of the Holder(s), the Board of Directors of the Company shall appoint a
firm of independent certified public accountants of recognized standing, which
may be the firm regularly retained by the Company, which shall give their
opinion upon the adjustment, if any, on a basis consistent with the standards
established in the other provisions of this Section 7, necessary with respect to
the Exercise Price, so as to preserve, without dilution, the exercise rights of
the Holder(s). Upon receipt of such opinion, the Board of Directors of the
Company shall forthwith make the adjustments described therein.
8. RESERVATION AND LISTING. The Company shall at all times reserve and keep
available out of its authorized shares of Common Stock, solely for the purpose
of issuance upon exercise of this Warrant, such number of shares of Common Stock
or other securities, properties or rights as shall be issuable upon the exercise
thereof. The Company covenants and agrees that, upon exercise of this Warrant
and payment of the Exercise Price therefor, all shares of Common Stock and other
securities issuable upon such exercise shall be duly and validly issued, fully
paid and non-assessable and not subject to preemptive rights of any shareholder.
9. CERTAIN NOTICE REQUIREMENTS.
9.1 HOLDER'S RIGHT TO RECEIVE NOTICE. Nothing herein shall be construed
as conferring upon the Holder the right to vote or consent or to receive notice
as a shareholder for the election of directors or any other matter, or as having
any rights whatsoever as a shareholder of the Company. If, however, at any time
prior to the expiration of this Warrant and its exercise, any of the events
described in Section 9.2 shall occur, then, in one or more of said events, the
Company shall give written notice of such event at least 15 days prior to the
date fixed as a record date or the date of closing the transfer books for the
determination of the shareholders entitled to such dividend, distribution,
conversion or exchange of securities or subscription rights, or entitled to vote
on such proposed dissolution, liquidation, winding up or sale. Such notice shall
specify such record date or the date of the closing of the transfer books, as
the case may be.
9.2 EVENTS REQUIRING NOTICE. The Company shall be required to give the
notice described in this Section 9 upon the occurrence of one or more of the
following events:
9
(a) if the Company takes a record of the holders of its shares
of Common Stock for the purpose of entitling them to receive a dividend
or distribution payable otherwise than in cash, or a cash dividend or
distribution payable otherwise than out of retained earnings, as
indicated by the accounting treatment of such dividend or distribution
on the books of the Company;
(b) if the Company offers to all the holders of its Common
Stock any additional shares of capital stock of the Company or
securities convertible into or exchangeable for shares of capital stock
of the Company, or any option, right or warrant to subscribe therefor;
or
(c) if the Company proposes to dissolve, liquidate or wind up
its affairs (other than in connection with a consolidation or merger)
or to sell of all or substantially all of its property, assets and
business.
9.3 NOTICE OF CHANGE IN EXERCISE PRICE AND NUMBER OF SHARES OF COMMON
STOCK PURCHASABLE. The Company shall, promptly after an event requiring a change
in the Exercise Price pursuant to Section 7 hereof and the related change in the
number of shares of Common Stock purchasable hereunder under Section 7.5, send
notice to the Holder(s) of such event and changes ("Price Notice"). The Price
Notice shall describe the event causing the changes and the method of
calculating same and shall be certified as being true and accurate by the
Company's Chief Financial Officer.
10. MISCELLANEOUS.
10.1 NOTICES. All notices, requests, consents and other communications
under this Warrant shall be in writing and shall be deemed to have been duly
made when hand delivered, or mailed by first class mail (postage prepaid),
express mail service, overnight courier or fax (with hard copy being sent by
first class mail or overnight courier): (i) if to the registered Holder(s) of
this Warrant, to the address of such Holder(s) as shown on the books of the
Company; or (ii) if to the Company, to following address or to such other
address as the Company may designate by notice to the Holder(s). Such notice
shall be deemed received 24 hours after it is sent.
Mitcham Industries, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
The address of any party may be changed by notice given in the manner provided
in this Section 10.1.
10.2 AMENDMENTS. The Company and the Holder(s) may from time to time
supplement or amend this Warrant but such supplement or amendment shall not be
effective unless evidenced by an agreement in writing executed by the Company
and the Holder(s).
10.3 HEADINGS. The headings contained herein are for the sole purpose
of convenience of reference, and shall not in any way limit or affect the
meaning or interpretation of any of the terms or provisions of this Warrant.
10
10.4 ENTIRE AGREEMENT. This Warrant (together with the other agreements
and documents being delivered pursuant to or in connection with this Warrant)
constitutes the entire agreement of the parties hereto with respect to the
subject matter hereof, and supersedes all prior agreements and understandings of
the parties, oral and written, with respect to the subject matter hereof.
10.5 BINDING EFFECT. This Warrant shall inure solely to the benefit of
and shall be binding upon the Holder(s) and the Company and their respective
permitted assignees, successors and legal representatives and assigns, and no
other person shall have or be construed to have any legal or equitable right,
remedy or claim under or in respect of or by virtue of this Warrant or any
provisions herein contained.
10.6 GOVERNING LAW. This Warrant shall be governed by and construed and
enforced in accordance with the laws of the State of Texas without giving effect
to choice of law or conflicts of laws principles. In the event of any dispute
involving this Warrant or the Warrant Stock, venue shall lie in Houston, ▇▇▇▇▇▇
County, Texas.
10.7 WAIVER, ETC. The failure of the Company or the Holder(s) to at any
time enforce any of the provisions of this Warrant shall not be deemed or
construed to be a waiver of any such provision, nor to in any way affect the
validity of this Warrant or any provision hereof or the right of the Company or
the Holder to thereafter enforce each and every provision of this Warrant. No
waiver of any breach, non-compliance or non-fulfillment of any of the provisions
of this Warrant shall be effective unless set forth in a written instrument
executed by the party or parties against whom or which enforcement of such
waiver is sought; and no waiver of any such breach, non-compliance or
non-fulfillment shall be construed or deemed to be a waiver of any other or
subsequent breach, non-compliance or non-fulfillment.
10.8 EXECUTION IN COUNTERPARTS. This Warrant may be executed in one or
more counterparts, and by the different parties hereto in separate counterparts,
each of which shall be deemed to be an original, but all of which taken together
shall constitute one and the same agreement, and shall become effective when one
or more counterparts has been signed by the parties hereto and delivered to the
other parties hereto.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer effective the 18th day of July, 2001.
MITCHAM INDUSTRIES, INC.
By:
-------------------------------------
P. ▇▇▇▇▇ ▇▇▇▇▇▇
Executive Vice President - Finance
11
Form to be used to exercise Warrant:
Mitcham Industries, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Date: ________________, 200__
The undersigned elects irrevocably to exercise this Warrant and to
purchase __________ shares of Common Stock of Mitcham Industries, Inc. and
hereby makes payment of $_______________ (at the rate of $________________ per
share of Common Stock) in payment of the Exercise Price pursuant thereto. Please
issue the Common Stock as to which this Warrant is exercised in accordance with
the instructions given below.
or
The undersigned hereby elects irrevocably to convert __________ shares
of the Common Stock purchasable under the within Warrant into ____________
shares of Common Stock of ______________________, Inc. (based on a "Market
Price" of $______________). Please issue the Common Stock in accordance with the
instructions given below.
----------------------------------------
Signature
----------------------------------------
Name Printed
----------------------------------------
Signature Guaranteed
INSTRUCTIONS FOR REGISTRATION OF SECURITIES
Name
------------------------------------------------------------------
(Please Print in Block Letters)
Address
---------------------------------------------------------------
NOTICE: THE SIGNATURE TO THIS FORM MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN WARRANT IN EVERY PARTICULAR WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER, AND MUST BE GUARANTEED BY A
BANK, OTHER THAN A SAVINGS BANK, OR BY A TRUST COMPANY OR BY A FIRM HAVING
MEMBERSHIP ON A REGISTERED NATIONAL SECURITIES EXCHANGE.
12
Form to be used to assign Warrant:
ASSIGNMENT
(To be executed by the registered Holder to effect a transfer
of the within Warrant):
FOR VALUE RECEIVED, ___________________________________________________
does hereby sell, assign and transfer unto _____________________________________
the right to purchase _________________________________ shares of Common Stock
of Mitcham Industries, Inc. (the "Company") evidenced by the within Warrant and
does hereby authorize the Company to transfer such right on the books of the
Company.
Dated: , 200
------------------------- -
----------------------------------------
Signature
----------------------------------------
Name Printed
----------------------------------------
Signature Guaranteed
NOTICE: THE SIGNATURE TO THIS FORM MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN WARRANT IN EVERY PARTICULAR WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER, AND MUST BE GUARANTEED BY A
BANK, OTHER THAN A SAVINGS BANK, OR BY A TRUST COMPANY OR BY A FIRM HAVING
MEMBERSHIP ON A REGISTERED NATIONAL SECURITIES EXCHANGE.
13