d1074069_13d-a.htm
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
----------------
SCHEDULE
13D
(Rule
13d-101)
INFORMATION
TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE
13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE
13d-2(a)
(Amendment
No. 7)
DryShips
Inc.
-----------------------------------------------------------------------------
(Name of
Issuer)
Common
Stock, par value $0.01
-----------------------------------------------------------------------------
(Title of
Class of Securities)
Y2109Q101
-----------------------------------------------------------------------------
(CUSIP
Number)
George
Economou
80
Kifissias Avenue
Amaroussion
15125
Athens,
Greece
011
30-210-8090570
-----------------------------------------------------------------------------
(Name,
Address and Telephone Number of Person
Authorized
to Receive Notices and Communications)
February
16, 2010
-----------------------------------------------------------------------------
(Date of
Event which Requires Filing of This Statement)
If the
filing person has previously filed a statement
on Schedule 13G to report the acquisition that is the subject of this
Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or
13d-1(g), check the following box [ ].
CUSIP No.
Y2109Q101
1.
NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS (ENTITIES ONLY)
George Economou
2.
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a)
|
[X] |
|
|
(b)
|
[
] |
3. SEC
USE ONLY
4. SOURCE
OF FUNDS
WC, BK, OO
5.
|
CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e)
|
|
[
] |
6. CITIZENSHIP
OR PLACE OF ORGANIZATION
Greece
NUMBER OF
SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7. SOLE
VOTING POWER
0
8. SHARED
VOTING POWER
44,931,746
(1)(2)(3)
9. SOLE
DISPOSITIVE POWER
0
10. SHARED
DISPOSITIVE POWER
44,931,746
(1)(2)(3)
11. AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON*
44,931,746
(1)(2)(3)
12.
|
CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
|
|
[
] |
13. PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW 11
15.8%
14. TYPE
OF REPORTING PERSON
IN
--------------
(1) Mr.
Economou may be deemed to beneficially own 10,944,910 of these shares through
Elios Investments Inc., which is a wholly-owned subsidiary of the
Entrepreneurial Spirit Foundation, a Lichtenstein foundation, the beneficiaries
of which are Mr. Economou and members of his family. Mr. Economou may be deemed
to beneficially own 5,500,000 of these shares through Fabiana Services S.A., a
Marshall Islands corporation, of which Mr. Economou is the
controlling person. Mr. Economou may be deemed to beneficially own 254,512 of
these shares through Goodwill Shipping Company Limited, a Malta corporation, of
which Mr. Economou is the controlling person.
(2) Mr.
Economou may be deemed to beneficially own 963,667 of these shares, as well as
an additional 3,500,000 shares which are issuable upon the exercise of warrants
dated April 8, 2009, through Sphinx Investment Corp., a Marshall Islands
corporation, of which Mr. Economou is the controlling person. Each warrant
entitles the holder to purchase one share of common stock. The warrants,
attached as Exhibit 3 to the previously filed Amendment No. 4 to this Schedule
13D, have been issued to Sphinx Investment Corp. pursuant to a Securities
Purchase Agreement dated March 6, 2009. A total of 1,500,000 warrants to
purchase shares of common stock became exercisable on October 8, 2009, at an
exercise price of $20 per share. A total of 1,500,000 warrants to purchase
shares of common stock will become exercisable on April 8, 2010, at an exercise
price of $25 per share. A total of 500,000 warrants to purchase shares of common
stock will become exercisable on October 8, 2010, at an exercise price of $30
per share.
(3) Mr.
Economou may be deemed to beneficially own 23,768,657 of these shares through
Entrepreneurial Spirit Holdings Inc., a Liberian corporation, which is a
wholly-owned subsidiary of the Entrepreneurial Spirit Foundation, a Lichtenstein
foundation, the beneficiaries of which are Mr. Economou and members of his
family. Entrepreneurial Spirit Holdings Inc. owns 33,955,224 shares of Series A
Convertible Preferred Stock of the Issuer, which in accordance with the terms of
the Securities Purchase Agreement, dated July 9, 2009, by and between the Issuer
and Entrepreneurial Spirit Holdings Inc. and the sellers named therein, may be
converted into shares of common stock at the option of Entrepreneurial Spirit
Holdings Inc., at any time, at a rate of 1:0.7.
CUSIP
No. Y2109Q101
1. NAME
OF REPORTING PERSONS
I.R.S.
IDENTIFICATION NO. OF ABOVE PERSONS (ENTITIES ONLY)
Elios
Investments Inc.
2.
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a)
|
[X] |
|
|
(b)
|
[
] |
3. SEC
USE ONLY
4. SOURCE
OF FUNDS
WC
5.
|
CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e)
|
|
[
] |
6. CITIZENSHIP
OR PLACE OF ORGANIZATION
Republic
of the Marshall Islands
NUMBER OF
SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7. SOLE
VOTING POWER
0
8. SHARED
VOTING POWER
10,944,910
9. SOLE
DISPOSITIVE POWER
0
10. SHARED
DISPOSITIVE POWER
10,944,910
11. AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON*
10,944,910
12.
|
CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
|
|
[
] |
13. PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW 11
3.8%
14. TYPE
OF REPORTING PERSON
CO
CUSIP
No. Y2109Q101
1. NAME
OF REPORTING PERSONS
I.R.S.
IDENTIFICATION NO. OF ABOVE PERSONS (ENTITIES ONLY)
Fabiana
Services S.A.
2.
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a)
|
[X] |
|
|
(b)
|
[
] |
3. SEC
USE ONLY
4. SOURCE
OF FUNDS
OO
5.
|
CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e)
|
|
[
] |
6. CITIZENSHIP
OR PLACE OF ORGANIZATION
Republic
of the Marshall Islands
NUMBER OF
SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7. SOLE
VOTING POWER
0
8. SHARED
VOTING POWER
5,500,000
9. SOLE
DISPOSITIVE POWER
0
10. SHARED
DISPOSITIVE POWER
5,500,000
11. AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON*
5,500,000
12.
|
CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
|
|
[
] |
13.
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
1.9%
14. TYPE
OF REPORTING PERSON
CO
CUSIP
No. Y2109Q101
1. NAME
OF REPORTING PERSONS
I.R.S.
IDENTIFICATION NO. OF ABOVE PERSONS (ENTITIES ONLY)
Sphinx Investment Corp.
2.
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a)
|
[X] |
|
|
(b)
|
[
] |
3. SEC
USE ONLY
4. SOURCE
OF FUNDS
WC
5.
|
CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e)
|
|
[
] |
6. CITIZENSHIP
OR PLACE OF ORGANIZATION
Republic
of the Marshall Islands
NUMBER OF
SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7. SOLE
VOTING POWER
0
8. SHARED
VOTING POWER
4,463,667
(2)
9. SOLE
DISPOSITIVE POWER
0
10. SHARED
DISPOSITIVE POWER
4,463,667
(2)
11. AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON*
4,463,667 (2)
12.
|
CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
|
|
[
] |
13. PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW 11
1.6%
14. TYPE
OF REPORTING PERSON
CO
CUSIP
No. Y2109Q101
1. NAME
OF REPORTING PERSONS
I.R.S.
IDENTIFICATION NO. OF ABOVE PERSONS (ENTITIES ONLY)
Goodwill Shipping Company Limited
2.
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a)
|
[X] |
|
|
(b)
|
[
] |
3. SEC
USE ONLY
4. SOURCE
OF FUNDS
OO
5.
|
CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e)
|
|
[
] |
6. CITIZENSHIP
OR PLACE OF ORGANIZATION
Republic of Malta
NUMBER OF
SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7. SOLE
VOTING POWER
0
8. SHARED
VOTING POWER
254,512
9. SOLE
DISPOSITIVE POWER
0
10. SHARED
DISPOSITIVE POWER
254,512
11. AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON*
254,512
12.
|
CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
|
|
[
] |
13. PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW 11
0.1%
14. TYPE
OF REPORTING PERSON
CO
CUSIP
No. Y2109Q101
1. NAME
OF REPORTING PERSONS
I.R.S.
IDENTIFICATION NO. OF ABOVE PERSONS (ENTITIES ONLY)
Entrepreneurial
Spirit Holdings Inc.
2.
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a)
[X]
|
|
|
(b)
[ ]
|
3. SEC
USE ONLY
4. SOURCE
OF FUNDS
SC
5.
|
CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e)
|
|
[
] |
6. CITIZENSHIP
OR PLACE OF ORGANIZATION
Republic
of Liberia
NUMBER OF
SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7. SOLE
VOTING POWER
0
8. SHARED
VOTING POWER
23,768,657
(3)
9. SOLE
DISPOSITIVE POWER
0
10. SHARED
DISPOSITIVE POWER
23,768,657
(3)
11. AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON*
23,768,657
(3)
12.
|
CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
|
|
[
] |
13. PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW 11
8.3%
14. TYPE
OF REPORTING PERSON
CO
CUSIP
No. Y2109Q101
The
purpose of this Amendment No. 7 to Schedule 13D is to report the Issuer's
issuance on January 25, 2010 of 4,500,000 restricted shares of its common stock,
par value $0.01 per share (the "Shares"), to Fabiana Services S.A., a Marshall
Islands corporation, of which George Economou is the controlling person,
pursuant to the Issuer's Amended and Restated 2008 Equity Incentive Plan (the
"Plan") and a restricted stock award agreement signed on February 16, 2010, and
made by and between the Issuer and Fabiana Services S.A. (the
"Agreement").
Item
1. Security and Issuer.
No
material change from the Schedule 13D/A filed on July 17, 2009.
Item
2. Identity and Background.
(c)
George Economou is the Chief Executive Officer, President and Chairman of the
Board of Directors of the Issuer.
Other
than as described above there is no material change from the Schedule 13D/A
filed on July 17, 2009.
Item
3. Source and Amount of Funds or Other Consideration.
On
January 25, 2010, the Issuer issued 4,500,000 restricted Shares to Fabiana
Services S.A., pursuant to the Plan and the Agreement. As a result, Mr. Economou
may be deemed to beneficially own 5,500,000 Shares.
No other
cash or consideration was paid in connection with the issuance of the Shares
described in Item 4 below.
Other
than as described above there is no material change from the Schedule 13D/A
filed on July 17, 2009.
Item
4. Purpose of Transaction.
On
January 25, 2010, the Issuer issued to Fabiana Services S.A. 4,500,000
restricted Shares for Mr. Economou's services, through Fabiana Services S.A., as
the Issuer's Chief Executive Officer for the year ended December 31, 2009, and
for his expected future service in such capacity for the years ending December
31, 2010, 2011 and 2012.
Pursuant
to Plan, 4,500,000 restricted Shares, which are subject to certain restrictions
on transfer and risks of forfeiture and other terms and conditions specified in
the Agreement, were granted to Fabiana Services S.A. under the
Agreement.
Other
than as described above there is no material change from the Schedule 13D/A
filed on July 17, 2009.
Item
5. Interest in Securities of the Issuer.
As of the
date hereof, Mr. Economou may be deemed to be the beneficial owner of 44,931,746
Shares, or 15.8% of the Shares, based upon 284,826,721 Shares outstanding as of
March 12, 2010. Mr. Economou has the sole power to vote or direct the vote of 0
Shares; has the shared power to vote or direct the vote of 44,931,746 Shares;
has the sole power to dispose or direct the disposition of 0 Shares; and has
shared power to dispose or direct the disposition of 44,931,746
Shares.
As of the
date hereof, Fabiana Services S.A. may be deemed to be the beneficial owner of
5,500,000 Shares, or 1.9% of the Shares, based upon 284,826,721 Shares
outstanding as of March 12, 2010. Fabiana Services S.A. has the sole
power to vote or direct the vote of 0 Shares; has the shared power to vote or
direct the vote of 5,500,000 Shares; has the sole
power to dispose or direct the disposition of 0 Shares; and has shared power to
dispose or direct the disposition of 5,500,000 Shares.
As of the
date hereof, Elios Investments Inc. may be deemed to be the beneficial owner of
10,944,910 Shares, or 3.8% of the Shares, based upon 284,826,721 Shares
outstanding as of March 12, 2010. Elios Investments Inc. has the sole power to
vote or direct the vote of 0 Shares; has the shared power to vote or direct the
vote of 10,944,910 Shares; has the sole power to dispose or direct the
disposition of 0 Shares; and has shared power to dispose or direct the
disposition of 10,944,910 Shares.
As of the
date hereof, Sphinx Investment Corp. may be deemed to be the beneficial owner of
4,463,667 Shares, or 1.6% of the Shares, based upon 284,826,721 Shares
outstanding as of March 12, 2010. Sphinx Investment Corp. has the sole power to
vote or direct the vote of 0 Shares; has the shared power to vote or direct the
vote of 4,463,667 Shares; has the sole power to dispose or direct the
disposition of 0 Shares; and has shared power to dispose or direct the
disposition of 4,463,667 Shares.
As of the
date hereof, Goodwill Shipping Company Limited may be deemed to be the
beneficial owner of 254,512 Shares, or 0.1% of the Shares, based upon
284,826,721 Shares outstanding as of March 12, 2010. Goodwill Shipping Company
Limited has the sole power to vote or direct the vote of 0 Shares; has the
shared power to vote or direct the vote of 254,512 Shares; has the sole power to
dispose or direct the disposition of 0 Shares; and has shared power to dispose
or direct the disposition of 254,512 Shares.
As of the
date hereof, Entrepreneurial Spirit Holdings Inc. may be deemed to be the
beneficial owner of 23,768,657 Shares, or 8.3% of the Shares, based
upon 284,826,721 Shares outstanding as of March 12, 2010. Entrepreneurial Spirit
Holdings Inc. has the sole power to vote or direct the vote of 0 Shares; has the
shared power to vote or direct the vote of 23,768,657 Shares; has the sole power
to dispose or direct the disposition of 0 Shares; and has the shared power to
dispose or direct the disposition of 23,768,657 Shares.
Other
than as described above there is no material change from the Schedule 13D/A
filed on July 17, 2009.
Item
6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer.
Pursuant
to the Plan, Fabiana Services S.A. entered into the Agreement with the Issuer
for the grant of 4,500,000 restricted Shares to Fabiana Services S.A., attached
as Exhibit C hereto. Pursuant to the terms of the Agreement, 1,000,000
restricted Shares vested on January 25, 2010, 1,000,000 restricted Shares will
vest on December 31, 2010, 1,000,000 restricted Shares will vest on December 31,
2011, and 1,500,000 restricted Shares will vest on December 31, 2012. These
restricted Shares contain certain restrictions, which include, among other
things, that (i) in the event Mr. Economou no longer serves as Chief Executive
Officer of the Issuer, for any reason other than death or disability, any of the
restricted Shares which have not yet vested shall be forfeited, (ii) in the
event of the death or disability of Mr. Economou prior to the vesting of any of
the restricted Shares, those Shares shall vest immediately in full, (iii) the
restricted Shares may not be sold, assigned, transferred, pledged or otherwise
encumbered or disposed of prior to vesting, and (iv) upon the forfeiture of any
restricted Shares, Fabiana Services S.A. loses the right to vote such Shares, to
receive and retain all dividends on such Shares and all other rights, powers and
privileges of a holder of such Shares.
Pursuant
to a Securities Purchase Agreement dated March 6, 2009, by and between the
Issuer and the purchasers listed therein, 3,500,000 warrants, dated April 8,
2009, were issued to Sphinx Investment Corp. and are attached as Exhibit D
hereto. Each warrant entitles the holder to purchase one share of the Issuer's
common stock.
Except
for the Plan, the Agreement, the Securities Purchase Agreement and as otherwise
described above, there are no contracts, arrangements, understandings or
relationships (legal or otherwise) among the Reporting Persons or between such
persons and any other person with respect to any securities of the Issuer,
including but not limited to the transfer or voting of any securities of the
Issuer, finder's fees, joint ventures, loan or option arrangements, puts or
calls, guarantees of profits, divisions of profits or loss, or the giving or
withholding of proxies.
Item
7. Material to be Filed as Exhibits.
Exhibit
A: Agreement between the Reporting Persons to file jointly
Exhibit
B: Schedule of Transactions in the Shares
Exhibit
C: Restricted Stock Award Agreement, signed, February 16, 2010
Exhibit
D: Warrants dated April 8, 2009
SIGNATURE
After reasonable inquiry
and to the best of my knowledge and belief, I certify that the
information set forth in this statement is true, complete and
correct.
|
March
15, 2010
|
|
(Date)
|
|
|
|
|
|
/s/
George Economou
|
|
George
Economou*
|
|
|
|
|
|
ELIOS
INVESTMENTS INC.*
|
|
|
|
|
|
|
BY:
|
/s/
Dr. Renato Cefai
|
|
Name:
|
Dr.
Renato Cefai
|
|
Title:
|
Sole
Director
|
|
|
|
|
|
|
|
FABIANA
SERVICES S.A.*
|
|
|
|
|
|
|
|
BY:
|
/s/
Andri Papadopoulou
|
|
Name:
|
Andri
Papadopoulou
|
|
Title:
|
Sole
Director
|
|
|
|
|
|
|
|
GOODWILL
SHIPPING COMPANY LIMITED*
|
|
|
|
|
BY:
|
MARE
SERVICES LTD.
|
|
|
|
|
BY:
|
/s/
Dr. Clarissa Cefai
|
|
Name:
|
Dr.
Clarissa Cefai
|
|
Title:
|
Director
|
|
|
|
|
|
|
|
SPHINX
INVESTMENT CORP.*
|
|
|
|
|
BY:
|
MARE
SERVICES LTD.
|
|
|
|
|
|
|
|
BY:
|
/s/
Dr. Clarissa Cefai
|
|
Name:
|
Dr.
Clarissa Cefai
|
|
Title:
|
Director
|
|
|
|
|
|
|
|
ENTREPRENEURIAL
SPIRIT HOLDINGS
|
|
INC.*
|
|
|
|
|
|
|
|
BY:
|
MARE
SERVICES LTD.
|
|
|
|
|
BY:
|
/s/
Dr. Clarissa Cefai
|
|
Name:
|
Dr.
Clarissa Cefai
|
|
Title:
|
Director
|
* The
Reporting Persons disclaim beneficial ownership except to the extent of their
pecuniary interest therein.
Exhibit
A
Joint Filing
Agreement
The
undersigned agree that this Amendment No. 7 to Schedule 13D dated March 15, 2010
relating to the common stock of DryShips Inc., par value $0.01 per share, shall
be filed on behalf of the undersigned.
/s/
George Economou
---------------------------
George
Economou
ELIOS
INVESTMENTS INC.
BY: /s/
Dr. Renato Cefai
----------------------
Name: Dr.
Renato Cefai
Title: Sole
Director
FABIANA
SERVICES S.A.
BY: /s/
Andri Papadopoulou
-------------------------------------
Name:
Andri Papadopoulou
Title: Sole
Director
GOODWILL
SHIPPING COMPANY LIMITED
BY: MARE
SERVICES LTD.
BY: /s/
Dr. Clarissa Cefai
-------------------------------
Name Dr.
Clarissa Cefai
Title: Director
SPHINX
INVESTMENT CORP.
BY: MARE
SERVICES LTD.
BY: /s/
Dr. Clarissa Cefai
-------------------------------
Name: Dr.
Clarissa Cefai
Title: Director
ENTREPRENEURIAL
SPIRIT HOLDINGS INC.
BY: MARE
SERVICES LTD.
BY: /s/
Dr. Clarissa Cefai
-------------------------------
Name: Dr.
Clarissa
Cefai
Title: Director
Dated: March 15, 2010
Exhibit
B
Transactions in the
Shares
Number of
Shares
Date
of Transaction
|
Purchase/(SOLD)
|
Price of Shares
|
|
|
|
|
|
|
February
16, 2010
|
4,500,000
|
0
|
* George
Economou is the controlling person of Fabiana Services S.A. and therefore may be
deemed to be the beneficial owner of these shares. The Issuer issued these
shares pursuant to the Issuer's Amended and Restated 2008 Equity Incentive
Plan.
Exhibit
C
RESTRICTED
STOCK AWARD AGREEMENT
RESTRICTED
STOCK AWARD AGREEMENT UNDER THE DRYSHIPS INC. 2008 EQUITY INCENTIVE PLAN dated
as of January 25, 2010 (the "Date of Grant"), between DryShips Inc. (the
"Company") and Fabiana Services S.A. (the "Grantee"), a company controlled by
Mr. George Economou.
WHEREAS
the Company has determined it to be in the best interests of the Company to
provide incentives to the Grantee and Mr. Economou for the substantial efforts
and future performance to be provided by the Grantee through Mr. Economou, which
the Company recognizes are decisive in the development and performance of the
Company.
NOW
THEREFORE the Company hereby provides to the Grantee this Restricted Stock Award
Agreement (this "Award Agreement"), which sets forth the terms and conditions of
an award (the "Award") of 4,500,000 shares of the Company's common stock, $0.01
par value ("Shares"), that are subject to certain restrictions on transfer and
risks of forfeiture and other terms and conditions specified herein ("Restricted
Shares") and that are granted to the Grantee under the Company's 2008 Equity
Incentive Plan, as amended (the "Plan").
THIS
AWARD IS SUBJECT TO ALL TERMS AND CONDITIONS OF THE PLAN AND THIS AWARD
AGREEMENT. BY SIGNING YOUR NAME BELOW, YOU WILL HAVE CONFIRMED YOUR
ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AWARD AGREEMENT.
SECTION
1. Definitions. Capitalized
terms used in this Award Agreement that are not defined in this Award Agreement
have the meanings as used or defined in the Plan.
SECTION
2. The
Plan. This Award is made pursuant to the Plan, the terms of
which are incorporated herein by reference, and in all respects shall be
interpreted in accordance with the Plan. The grant and terms of this
Award are subject to the provisions of the Plan and to interpretations,
regulations and determinations concerning the Plan established from time to time
by the Administrator in accordance with the provisions of the Plan, including,
but not limited to, provisions pertaining to (a) rights and obligations with
respect to withholding taxes, (b) the registration, qualification or listing of
the Company's shares, (c) capital or other changes of the Company and (d) other
requirements of applicable law. The Administrator shall have the
authority to interpret and construe this Award pursuant to the terms of the
Plan, and its decisions shall be conclusive as to any questions arising
hereunder.
SECTION 3. Vesting and
Delivery. (a) Vesting. The
Restricted Shares shall become vested, and the transfer restrictions set forth
in Sections 3(b) and 6 of this Award Agreement shall lapse, with respect to the
Shares covered by this Award, conditioned upon the Grantee's and Mr. Economou's
continued engagement by the Company from the date of this Award Agreement
through the applicable vesting date, in accordance with the following
schedule.
Vesting Date |
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Number of Shares To Vest
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|
|
|
|
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Date
of Grant
|
|
1,000,000
|
|
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December
31, 2010
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1,000,000
|
|
|
December
31, 2011
|
|
1,000,000
|
|
|
December
31, 2012
|
|
1,500,000
|
|
(b) Delivery of
Shares. On or following the date of this Award Agreement, the
Company shall issue, either in certificated or book-entry form, Restricted
Shares which shall be registered in the Grantee's name, and the Grantee shall
deliver an executed copy of this Award Agreement to the Company in accordance
with Section 13 below. The Company shall hold any such Restricted
Shares issued in certificated form in escrow or shall require that the Grantee
deposit such Restricted Shares (together with a stock power endorsed in blank)
with the Company or such other custodian as may be designated by the
Administrator or the Company, including a transfer agent, and shall be held by
the Company or other custodian, as applicable, until such time, if any, as the
Grantee's rights with respect to such Restricted Shares become vested, and, upon
the vesting of the Grantee's rights with respect to any such Restricted Shares
issued in certificated form, the Company or other custodian, as applicable, will
deliver such certificates to the Grantee or the Grantee's legal representative,
and the Restricted Shares shall upon vesting become ordinary Shares and cease to
be subject to the restrictions of Section 6 of this Award Agreement and Section
2.6 of the Plan.
SECTION
4. Forfeiture of Restricted
Shares. If the Grantee's rights with respect to any Restricted
Shares awarded to the Grantee pursuant to this Award Agreement have not become
vested prior to the date on which the Grantee's or Mr. Economou's engagement by
the Company terminates (a) for any reason other than death or disability (as
such term is defined in the Plan), the Grantee's rights with respect to such
Restricted Shares shall immediately terminate, and the Grantee will be entitled
to no further payments or benefits with respect thereto or (b) as a result of
Mr. Economou's death or disability, the Grantee's rights with respect to such
Restricted Shares shall immediately vest in full upon such termination of
employment.
SECTION
5. Voting
Rights; Dividend Equivalents. Until the forfeiture of any
Restricted Shares pursuant to Section 4 above and subject to the terms of the
Plan and this Award Agreement (including Sections 3 and 6 hereof), the Grantee
shall have the right to vote such Restricted Shares, to receive and retain all
dividends paid on such Restricted Shares and to exercise all other rights,
powers and privileges of a holder of Shares with respect to such Restricted
Shares.
SECTION
6. Non-Transferability of
Restricted Shares. Unless otherwise provided by the
Administrator in its discretion, Restricted Shares may not be sold, assigned,
transferred, pledged or otherwise encumbered or disposed of prior to the time
such Shares become vested. Any purported sale, assignment, transfer,
pledge or other encumbrance or disposition of Restricted Shares in violation of
the provisions of this Section 6 and Sections 2.6 and 3.3 of the Plan shall be
void.
SECTION
7. Taxes. The
delivery of Shares pursuant to Section 3(b) above is conditioned on satisfaction
of any applicable withholding taxes in accordance with Section 3.4 of the Plan
and this Award is in all respects subject to the provisions of Section 3.4 of
the Plan.
SECTION
8. Consents, Stop Transfer
Orders and Legends. (a) Consents. The
Grantee's rights in respect of the Restricted Shares are conditioned on the
receipt to the full satisfaction of the Administrator of (i) any required
consents that the Administrator may determine to be necessary or advisable
(including, without limitation, the Grantee's consenting to the Company's
supplying to any third-party recordkeeper of the Plan such personal information
as the Administrator deems advisable to administer the Plan), (ii) the Grantee's
making or entering into such written representations, warranties and agreements
in connection with the acquisition of any Shares pursuant to this Award as the
Administrator may request in order to comply with applicable securities laws or
this Award (including, without limitation, the Grantee's representing in writing
to the Company (A) that it is the Grantee's intention to acquire the Shares
under this Award Agreement for investment and not with a view to the
distribution thereof, (B) that the Grantee shall comply with such restrictions
on the subsequent transfer of such Shares as the Company or the Administrator
shall deem necessary or advisable as a result of any applicable law, regulation
or official interpretation thereof and (C) the Grantee's acknowledgment that all
Share certificates delivered under this Award Agreement shall be subject to such
stop transfer orders and other restrictions as the Company or the Administrator
may deem advisable under the Plan, this Award Agreement or the rules,
regulations and other requirements of the U.S. Securities and Exchange
Commission, any stock exchange upon which such Shares are listed, and any
applicable securities or other laws, and that certificates representing Shares
may contain a legend to reflect any such restrictions) and (iii) any stock power
endorsed by the Grantee in blank in accordance with Section 3(b).
(b) Stop Transfer Orders and
Legends. The Company may affix to certificates for Shares
issued pursuant to this Award Agreement any legend that the Administrator
determines to be necessary or advisable (including to reflect any restrictions
to which the Grantee may be subject under any applicable securities laws and/or
with respect to nontransferability pursuant to this Award
Agreement). The Company may advise the transfer agent to place a stop
order against any legended Shares.
SECTION
9. Changes
in Capital Structure/Other Significant Events. This Award may
be subject to adjustment in the event of certain changes in capitalization or
other significant corporate events, as more fully set forth in Section 1.5 of
the Plan. Upon a Change in Control, all Shares awarded under this
Award Agreement shall immediately vest in full and the transfer restrictions set
forth in Section 3(b) and 6 of this Award Agreement shall thereupon
lapse.
SECTION
10. Governing
Law. The Plan and this Award Agreement will be construed and
administered in accordance with the laws of the State of New York, without
giving effect to the principles of conflict of laws.
SECTION
11. Headings. Headings
contained herein are for the purpose of convenience only and shall not be deemed
in any way material or relevant to the construction or interpretation of this
Award Agreement.
SECTION
12. Amendment and Termination of
the Plan/Award. The Plan and/or this Award may be amended,
cancelled or terminated in accordance with the terms of Section 3.1 of the
Plan. No amendment to the Plan or this Award shall materially impair
any rights or materially increase any obligations under this Award without the
consent of the Grantee. The Administrator, in its sole discretion,
may, in accordance with the terms of the Plan, accelerate the vesting of all or
any portion of the Restricted Shares at such time and under such circumstances
as the Administrator deems appropriate.
SECTION
13. Counterparts. This
Award shall expire if this Award Agreement is not signed by the Grantee and
returned to the Company within 120 days of the date of this Award
Agreement. This Award Agreement may be signed in counterparts, each
of which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
Signature
Page Follows
IN
WITNESS WHEREOF, THE PARTIES HERETO HAVE EXECUTED THIS AWARD AGREEMENT AS OF THE
DATE FIRST WRITTEN ABOVE.
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DRYSHIPS
INC.
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By:
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/s/
Ziad Nakhleh
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Name:
Ziad Nakhleh
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Title: Chief
Financial Officer
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FABIANA
SERVICES S.A.
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By:
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/s/
George Economou
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Name:
George Economou
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Title: Authorized
Signatory
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Exhibit
D
WARRANT
THIS
WARRANT AND THE SHARES OF COMMON STOCK ISSUED UPON ANY EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY
STATE SECURITIES OR BLUE SKY LAWS, AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF (I) AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND COMPLIANCE WITH SUCH STATE
LAWS OR (II) AN APPLICABLE EXEMPTION THEREFROM AND AN OPINION OF COUNSEL
SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT
REQUIRED. THIS WARRANT IS SUBJECT TO AN AGREEMENT BY THE REGISTERED
HOLDER WITH THE COMPANY NOT TO SELL THIS WARRANT FOR A PERIOD OF 180 DAYS
FOLLOWING THE DATE OF ISSUANCE HEREOF.
WARRANT
No. W -
1
For the
Purchase of 1,500,000 Shares of Common Stock
of
DryShips Inc.
(Organized
under the Laws of the Republic of the Marshall Islands)
This is
to certify that, for value received, Sphinx Investment Corp. or its, his or her
permitted assigns (hereinafter called the "Warrantholder"), is entitled, subject
to the terms and conditions hereinafter set forth, to purchase 1,500,000 shares
of common stock (the "Common Stock") of DryShips Inc., a Marshall Islands
corporation (hereinafter called the "Company"), from the Company at the purchase
price of $20.00 per share, and to receive a certificate or certificates for the
shares so purchased. This Warrant is first issued on April 8, 2009
(the "Original Issue Date"), and shall remain outstanding until the Termination
Date (as defined below) subject to the following terms and
conditions.
1. Terms and Exercise of
Warrant
(a) Exercise
Period. Subject to the terms of this Warrant, the
Warrantholder shall have the right, at any time during the period commencing on
October 8, 2009 and ending at 5:00 P.M., New York City time, on April 7, 2014
(the "Termination Date"), or if such date is a day on which banking institutions
in The City of New York or in Athens, Greece are authorized by law to close,
then on the next succeeding day which shall not be such a day (a "Business
Day"), to purchase from the Company up to the number of fully paid and
nonassessable shares of Common Stock which the Warrantholder may at the time be
entitled to purchase pursuant to this Warrant. Such shares of Common
Stock and other shares that the Company may be required by the operation of
Section 4 to issue upon the exercise hereof are referred to hereinafter as the
"Warrant Shares."
(b) Method of
Exercise. This Warrant shall be exercised by surrender to the
Company, at its principal office at 80 Kiffissias Avenue, Amaroussion 15125,
Athens, Greece, or at such other address as the Company may designate by notice
in writing to the Warrantholder at the address of the Warrantholder appearing on
the books of the Company or such other address as the Warrantholder may
designate in writing, of this Warrant certificate, together with the form of
Election to Purchase, included as Exhibit A hereto, duly completed and signed,
and upon payment to the Company of the Exercise Price (as defined in Section 3),
for the number of Warrant Shares with respect to which this Warrant is then
exercised
together with all taxes and governmental fees and charges applicable upon such
exercise. Payment of the aggregate Exercise Price shall be made in
cash or by certified check or cashier's check drawn on a financial institution
reasonably acceptable to the Company, payable to the order of the Company, or by
wire transfer in immediately available funds to an account specified by the
Company. In the event the Warrantholder elects to exercise only a
portion of the number of Shares of Common Stock which the Warrantholder is
entitled to purchase pursuant to this Warrant, the Company shall issue a new
Warrant entitling the Warrantholder to purchase the remaining number of Shares
not yet exercised (the "New Warrant"); provided, however, all Shares
of Common Stock purchased pursuant to this Warrant and any New Warrants must be
purchased before the Termination Date.
(c) Share Issuance Upon
Exercise. Upon such surrender of this Warrant certificate and
payment of such Exercise Price as aforesaid, the Company shall promptly
thereafter issue to the Warrantholder in such name or names as the Warrantholder
may designate in writing, a certificate or certificates for the number of full
Warrant Shares so purchased upon the exercise of the Warrant, together with
cash, as provided in Section 5 hereof, with respect to any fractional Warrant
Shares otherwise issuable upon such surrender. Such certificate or
certificates shall be deemed to have been issued and any person so designated to
be named therein shall be deemed to have become a holder of such Warrant Shares
as of the close of business on the date of the surrender of this Warrant and
payment of the Exercise Price, as aforesaid, notwithstanding that the
certificates representing such Warrant Shares shall not actually have been
delivered or that the transfer books of the Company shall then be
closed.
2. Legend On Warrant
Shares.
Each
certificate for Warrant Shares initially issued upon exercise of this Warrant,
unless at the time of exercise such Warrant Shares are registered with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Act"), shall bear the following legend:
THE
SHARES OF COMMON STOCK REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES OR BLUE
SKY LAWS, AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF (I) AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT AND COMPLIANCE WITH SUCH STATE LAWS OR (II) AN APPLICABLE
EXEMPTION THEREFROM AND AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER THAT
SUCH REGISTRATION IS NOT REQUIRED.
Any
certificate issued at any time in exchange or substitution for any certificate
bearing such legend (except a new certificate issued upon completion of a public
distribution pursuant to a registration statement under the Act of the
securities represented thereby) shall also bear the above legend unless, in the
opinion of such counsel as shall be reasonably approved by the Company, the
securities represented thereby need no longer be subject to such
restrictions.
3. Exercise
Price.
The price
per share at which Warrant Shares shall be purchasable on the exercise of this
Warrant shall be $20.00 per Share, subject to adjustment pursuant to Section 4
hereof (originally and as adjusted, the "Exercise Price").
4. Adjustment of Exercise Price
and Number of Shares.
The
number of Warrant Shares issuable upon the exercise of this Warrant Certificate
and the Exercise Price shall be subject to adjustment from time to time upon the
occurrence of certain events, as follows:
(a) Merger. If
at any time there shall be a merger or consolidation of the Company with or into
another corporation when the Company is not the surviving corporation, then, as
part of such merger or consolidation, lawful provision shall be made so that the
Warrantholder shall thereafter be entitled to receive upon exercise of rights
herein granted, during the period specified herein and upon payment of the
aggregate Exercise Price, the number of shares of stock or other securities or
property of the successor corporation resulting from such merger or
consolidation, to which a holder of the stock deliverable upon exercise of the
rights granted in this Warrant would have been entitled in such merger or
consolidation if such rights had been exercised immediately before such merger
or consolidation. In any such case, appropriate adjustment shall be
made in the application of the provisions of this Warrant with respect to the
rights and interests of the Warrantholder after the merger or
consolidation. The Company will not effect any such merger or
consolidation unless, prior to the consummation thereof, the successor
corporation shall assume, by written instrument reasonably satisfactory in form
and substance to the Warrantholder, the obligations of the Company under this
Warrant.
(b) Reclassification,
Etc. If the Company at any time shall, by combination or
reclassification of securities or otherwise, change any of the securities as to
which purchase rights under this Warrant exist into the same or a different
number of securities of any other class or classes, this Warrant shall
thereafter represent the right to acquire such number and kind of securities as
would have been issuable as the result of such change with respect to the
securities which were subject to the purchase rights under this Warrant
immediately prior to such combination, reclassification or other
change.
(c) Stock Dividends, Splits,
Subdivisions or Combination of Shares. If the Company at any
time shall pay a stock dividend on its Common Stock or otherwise makes a
distribution on any class of capital stock that is payable in shares of Common
Stock, or splits or subdivides its Common Stock, the Exercise Price shall be
proportionately decreased and the number of Warrant Shares issuable pursuant to
this Warrant shall be proportionately increased. If the Company at
any time shall combine or reverse split its Common Stock, the Exercise Price
shall be proportionately increased and the number of Warrant Shares issuable
pursuant to this Warrant shall be proportionately decreased.
(d) Distribution of
Assets. If the Company shall declare or make any dividend or
other distribution of its non-cash assets (or rights to acquire its assets) to
holders of Common Shares, by way of return of capital or otherwise (including,
without limitation, any distribution of stock or other securities, property or
options by way of a dividend, spin off, reclassification, corporate
rearrangement, scheme of arrangement or other similar transaction) (a
"Distribution"), at any time after the issuance of this Warrant, then, in each
such case, the Warrantholder shall be entitled to participate in such
Distribution to the same extent that the Warrantholder would have participated
therein if the Warrantholder had held the number of Common Shares acquirable
upon complete exercise of this Warrant immediately before the date on which a
record is taken for such Distribution, or, if no such record is taken, the date
as of which the record holders of Common Shares are to be determined for the
participation in such Distribution.
(e) Notice of Adjustments;
Notices. Whenever the Exercise Price or number of shares
hereunder shall be adjusted, the Company shall issue a certificate signed by its
President, Chief Executive Officer or Chief Financial Officer setting forth, in
reasonable detail, the event requiring the adjustment, the amount of the
adjustment, the method by which such adjustment was calculated and the Exercise
Price and number of shares hereunder after giving effect to such adjustment, and
shall cause a copy of such certificate to be mailed (by first class mail,
postage prepaid, with a copy by facsimile or electronic transmission) to the
Warrantholder. The Company shall give written notice to the Warrantholder at
least 20 days prior to the date on which the Company closes its books or takes a
record for determining rights to receive any dividends or
distributions.
(f) Notices of Corporate
Events. If the Company (i) shall take a record of the holders
of its Common Stock for the purpose of entitling them to receive any dividend or
other distribution of cash, securities or other property in respect of its
Common Stock, (ii) authorizes or approves any (a) capital reorganization of the
Company, (b) any reclassification of the capital stock of the Company, (c) any
consolidation or merger of the Company with or into another corporation, (d) any
sale of all or substantially all of its assets in one or a series of related
transactions or (e) any tender offer or exchange offer
pursuant to which holders of the Common Stock are permitted to tender or
exchange their shares for other securities, cash or property or (iii) authorizes
the voluntary dissolution, liquidation or winding up of the Company, then the
Company shall mail or cause to be mailed (with a copy by facsimile or electronic
transmission) to each Warrantholder a notice describing the material terms and
conditions of such transaction at least 20 calendar days prior to the applicable
record or effective date on which a person would need to hold Common Stock in
order to participate in or vote with respect to such transaction, and the
Company will take all steps reasonably necessary in order to insure that the
Warrantholder is given the practical opportunity to exercise this Warrant prior
to such time so as to participate in or vote with respect to such transaction;
provided, however, that the
failure to deliver such notice or any defect therein shall not affect the
validity of the corporate action required to be described in such
notice.
(g) No other Adjustments;
Warrant Certificates. Except as provided in this Section 4, no
other adjustments in the Exercise Price or the number or kind of securities
issuable upon exercise of this Warrant shall be made during the term of this
Warrant or upon exercise of this Warrant.
Irrespective
of any adjustments in the Exercise Price or the number or kind of securities
issuable upon the exercise of this Warrant, the Warrant certificate or
certificates theretofore or thereafter issued may continue to express the same
price or number or kind of securities stated in this Warrant initially issuable
hereunder.
5. Fractional
Interest.
The
Company shall not be required to issue fractional shares upon exercise of this
Warrant but shall pay an amount of cash equal to the then current trading price,
or if there is no public market, cash equal to the then fair market value of the
shares as reasonably determined by the Board of Directors of the Company,
multiplied by such fraction.
6. Transfers of
Warrant
(a) Transfer,
etc. The Company shall from time to time register the transfer
of this Warrant on its books and records upon surrender of this Warrant
accompanied by a written instrument or instruments of transfer substantially in
the form of Exhibit B attached hereto, duly executed by the registered holder or
holders thereof or by the duly appointed legal representative thereof or by a
duly authorized attorney or by the duly authorized agent, provided, however, that the
Warrantholder shall have given at least five (5) Business Days prior notice
thereof to the Company, which notice shall include the identity of the
transferee. Upon any such registration of transfer, a new Warrant
shall be promptly issued to the transferee(s), in the denomination or
denominations specified in such instrument of transfer, and if requested by the
Warrantholder, the Company shall issue to the Warrantholder a new Warrant
evidencing the portion of this Warrant not so transferred.
(b) Transferee. Any
person in possession of this Warrant properly endorsed and, if not the original
holder hereof, to whom possession was transferred in accordance with the
provisions of this Section 6 is authorized to represent himself as absolute
owner hereof and is granted power to transfer absolute title hereto by
endorsement and delivery hereof to a bona fide purchaser hereof for value; each
prior Warrantholder, taker or owner waives and renounces all of his equities or
rights in this Warrant in favor of every such bona fide purchaser, and every
such bona fide purchaser shall acquire title hereto and to all rights
represented hereby.
(c) Applicable
Laws. The Company shall not be required to register any
transfer of this Warrant pursuant to Section 6 hereof if such registration or
transfer violates applicable laws, including applicable United States or other
securities laws.
7. No
Rights as Shareholder Conferred by Warrant.
This
Warrant shall not entitle the Warrantholder to any of the rights of a holder of
any common stock of the Company, including, without limitation, the right to
receive dividends, if any, or payments upon the liquidation, dissolution or
winding up of the Company or to exercise any voting rights.
8. Notices.
Any
notice given pursuant to this Warrant by the Company or by the Warrantholder
shall be in writing and shall be deemed to have been duly given upon (a)
transmitter's confirmation of the receipt of a facsimile transmission, (b)
confirmed delivery by a standard overnight carrier or (c) the expiration of five
business days after the day when mailed by certified or registered mail, return
receipt requested, postage prepaid at the addresses:
If to the Company:
80
Kiffissias Avenue
Amaroussion
15125
Athens,
Greece
Facsimile
No.: 011-30-210-809-0585
If to the
Warrantholder, then to the address of the Warrantholder in the Company's books
and records.
Each
party hereto may, from time to time, change the address to which notices to it
are to be transmitted, delivered or mailed hereunder by written notice in
accordance herewith to the other party.
9. General
Provisions.
(a) Successors. All
the covenants and provisions of this Warrant shall bind and inure to the benefit
of the respective executors, administrators, successors and assigns of the
Warrantholder and the Company.
(b) Choice of
Law. THIS
WARRANT AND THE RIGHTS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL
MATTERS OF CONSTRUCTION, VALIDITY, PERFORMANCE, AND ENFORCEMENT, AND WITHOUT
GIVING EFFECT TO THE PRINCIPLES OF CONFLICT OF LAWS.
(c) Entire
Agreement. Except as provided herein, this Warrant, including
exhibits, contains the entire agreement of the parties, and supersedes all
existing negotiations, representations or agreements and other oral, written, or
other communications between them concerning the subject matter of this
Warrant.
(d) Severability. If
any provision of this Warrant is unenforceable, invalid, or violates applicable
law, such provision shall be deemed stricken and shall not affect the
enforceability of any other provisions of this Warrant.
(e) Captions. The
captions in this Warrant are inserted only as a matter of convenience and for
reference and shall not be deemed to define, limit, enlarge, or describe the
scope of this Warrant or the relationship of the parties, and shall not affect
this Warrant or the construction of any provisions herein.
(f) Amendments. This
Warrant may not be amended, and no provision or obligation herein may be waived,
other than by a writing duly executed by each of the Warrantholder and the
Company or, in the case of a waiver, by the party waiving
compliance.
IN
WITNESS WHEREOF, the Company caused this Warrant to be duly executed as of the
date first above written.
EXHIBIT
A
DRYSHIPS
INC.
ELECTION
TO PURCHASE WARRANT
DryShips
Inc.
80
Kiffissias Avenue
Amaroussion
15125
Athens,
Greece
Ladies
and Gentlemen:
The
undersigned hereby irrevocably elects to exercise the right of purchase set
forth in the Warrant No. W - __ (the "Warrant"), to purchase thereunder ________
shares of the Common Stock of DryShips Inc. (the "Shares") provided
for therein and hereby tenders $______ in payment of the actual exercise price
thereof, and requests that the Shares be issued in the name of
_______________________________________________
_______________________________________________
(Please
Print Name and Address of Warrantholder above)
Dated:
______________,
Name
of Warrantholder or Assignee:
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(Please
Print)
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Address:_______________________________
Signature:______________________________
EXHIBIT
B
DRYSHIPS
INC.
WARRANT
TRANSFER FORM
FOR VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto
____________________ the attached Warrant and appoints the Secretary of DryShips
Inc. (the "Company") as its, his or her attorney to transfer said right on the
books of the Company with full power of substitution in the
premises.
Dated:
__________________________
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(Signature
must conform in all
respects
to name of Warrantholder as
specified
on the face of the Warrant or on the
Company's
books and records)
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Address
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WARRANT
THIS
WARRANT AND THE SHARES OF COMMON STOCK ISSUED UPON ANY EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY
STATE SECURITIES OR BLUE SKY LAWS, AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF (I) AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND COMPLIANCE WITH SUCH STATE
LAWS OR (II) AN APPLICABLE EXEMPTION THEREFROM AND AN OPINION OF COUNSEL
SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT
REQUIRED. THIS WARRANT IS SUBJECT TO AN AGREEMENT BY THE REGISTERED
HOLDER WITH THE COMPANY NOT TO SELL THIS WARRANT FOR A PERIOD OF 180 DAYS
FOLLOWING THE DATE OF ISSUANCE HEREOF.
WARRANT
No. W -
2
For the
Purchase of 1,500,000 Shares of Common Stock
of
DryShips Inc.
(Organized
under the Laws of the Republic of the Marshall Islands)
This is
to certify that, for value received, Sphinx Investment Corp. or its, his or her
permitted assigns (hereinafter called the "Warrantholder"), is entitled, subject
to the terms and conditions hereinafter set forth, to purchase 1,500,000 shares
of common stock (the "Common Stock") of DryShips Inc., a Marshall Islands
corporation (hereinafter called the "Company"), from the Company at the purchase
price of $25.00 per share, and to receive a certificate or certificates for the
shares so purchased. This Warrant is first issued on April 8, 2009
(the "Original Issue Date"), and shall remain outstanding until the Termination
Date (as defined below) subject to the following terms and
conditions.
1. Terms and Exercise of
Warrant
(a) Exercise
Period. Subject to the terms of this Warrant, the
Warrantholder shall have the right, at any time during the period commencing on
April 8, 2010 and ending at 5:00 P.M., New York City time, on April 7, 2014 (the
"Termination Date"), or if such date is a day on which banking institutions in
The City of New York or in Athens, Greece are authorized by law to close, then
on the next succeeding day which shall not be such a day (a "Business Day"), to
purchase from the Company up to the number of fully paid and nonassessable
shares of Common Stock which the Warrantholder may at the time be entitled to
purchase pursuant to this Warrant. Such shares of Common Stock and
other shares that the Company may be required by the operation of Section 4 to
issue upon the exercise hereof are referred to hereinafter as the "Warrant
Shares."
(b) Method of
Exercise. This Warrant shall be exercised by surrender to the
Company, at its principal office at 80 Kiffissias Avenue, Amaroussion 15125,
Athens, Greece, or at such other address as the Company may designate by notice
in writing to the Warrantholder at the address of the Warrantholder appearing on
the books of the Company or such other address as the Warrantholder may
designate in writing, of this Warrant certificate, together with the form of
Election to Purchase, included as Exhibit A hereto, duly completed and signed,
and upon payment to the Company of the Exercise Price (as defined in Section 3),
for the number of Warrant Shares with respect to which this Warrant is then
exercised together with all taxes and governmental fees and charges applicable
upon such exercise. Payment
of the aggregate Exercise Price shall be made in cash or by certified check or
cashier's check drawn on a financial institution reasonably acceptable to the
Company, payable to the order of the Company, or by wire transfer in immediately
available funds to an account specified by the Company. In the event
the Warrantholder elects to exercise only a portion of the number of Shares of
Common Stock which the Warrantholder is entitled to purchase pursuant to this
Warrant, the Company shall issue a new Warrant entitling the Warrantholder to
purchase the remaining number of Shares not yet exercised (the "New Warrant");
provided, however, all Shares
of Common Stock purchased pursuant to this Warrant and any New Warrants must be
purchased before the Termination Date.
(c) Share Issuance Upon
Exercise. Upon such surrender of this Warrant certificate and
payment of such Exercise Price as aforesaid, the Company shall promptly
thereafter issue to the Warrantholder in such name or names as the Warrantholder
may designate in writing, a certificate or certificates for the number of full
Warrant Shares so purchased upon the exercise of the Warrant, together with
cash, as provided in Section 5 hereof, with respect to any fractional Warrant
Shares otherwise issuable upon such surrender. Such certificate or
certificates shall be deemed to have been issued and any person so designated to
be named therein shall be deemed to have become a holder of such Warrant Shares
as of the close of business on the date of the surrender of this Warrant and
payment of the Exercise Price, as aforesaid, notwithstanding that the
certificates representing such Warrant Shares shall not actually have been
delivered or that the transfer books of the Company shall then be
closed.
2. Legend On Warrant
Shares.
Each
certificate for Warrant Shares initially issued upon exercise of this Warrant,
unless at the time of exercise such Warrant Shares are registered with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Act"), shall bear the following legend:
THE
SHARES OF COMMON STOCK REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES OR BLUE
SKY LAWS, AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF (I) AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT AND COMPLIANCE WITH SUCH STATE LAWS OR (II) AN APPLICABLE
EXEMPTION THEREFROM AND AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER THAT
SUCH REGISTRATION IS NOT REQUIRED.
Any
certificate issued at any time in exchange or substitution for any certificate
bearing such legend (except a new certificate issued upon completion of a public
distribution pursuant to a registration statement under the Act of the
securities represented thereby) shall also bear the above legend unless, in the
opinion of such counsel as shall be reasonably approved by the Company, the
securities represented thereby need no longer be subject to such
restrictions.
3. Exercise
Price.
The price
per share at which Warrant Shares shall be purchasable on the exercise of this
Warrant shall be $25.00 per Share, subject to adjustment pursuant to Section 4
hereof (originally and as adjusted, the "Exercise Price").
4. Adjustment
of Exercise Price and Number of Shares.
The
number of Warrant Shares issuable upon the exercise of this Warrant Certificate
and the Exercise Price shall be subject to adjustment from time to time upon the
occurrence of certain events, as follows:
(a) Merger. If
at any time there shall be a merger or consolidation of the Company with or into
another corporation when the Company is not the surviving corporation, then, as
part of such merger or
consolidation, lawful provision shall be made so that the Warrantholder shall
thereafter be entitled to receive upon exercise of rights herein granted, during
the period specified herein and upon payment of the aggregate Exercise Price,
the number of shares of stock or other securities or property of the successor
corporation resulting from such merger or consolidation, to which a holder of
the stock deliverable upon exercise of the rights granted in this Warrant would
have been entitled in such merger or consolidation if such rights had been
exercised immediately before such merger or consolidation. In any
such case, appropriate adjustment shall be made in the application of the
provisions of this Warrant with respect to the rights and interests of the
Warrantholder after the merger or consolidation. The Company will not
effect any such merger or consolidation unless, prior to the consummation
thereof, the successor corporation shall assume, by written instrument
reasonably satisfactory in form and substance to the Warrantholder, the
obligations of the Company under this Warrant.
(b) Reclassification,
Etc. If the Company at any time shall, by combination or
reclassification of securities or otherwise, change any of the securities as to
which purchase rights under this Warrant exist into the same or a different
number of securities of any other class or classes, this Warrant shall
thereafter represent the right to acquire such number and kind of securities as
would have been issuable as the result of such change with respect to the
securities which were subject to the purchase rights under this Warrant
immediately prior to such combination, reclassification or other
change.
(c) Stock Dividends, Splits,
Subdivisions or Combination of Shares. If the Company at any
time shall pay a stock dividend on its Common Stock or otherwise makes a
distribution on any class of capital stock that is payable in shares of Common
Stock, or splits or subdivides its Common Stock, the Exercise Price shall be
proportionately decreased and the number of Warrant Shares issuable pursuant to
this Warrant shall be proportionately increased. If the Company at
any time shall combine or reverse split its Common Stock, the Exercise Price
shall be proportionately increased and the number of Warrant Shares issuable
pursuant to this Warrant shall be proportionately decreased.
(d) Distribution of
Assets. If the Company shall declare or make any dividend or
other distribution of its non-cash assets (or rights to acquire its assets) to
holders of Common Shares, by way of return of capital or otherwise (including,
without limitation, any distribution of stock or other securities, property or
options by way of a dividend, spin off, reclassification, corporate
rearrangement, scheme of arrangement or other similar transaction) (a
"Distribution"), at any time after the issuance of this Warrant, then, in each
such case, the Warrantholder shall be entitled to participate in such
Distribution to the same extent that the Warrantholder would have participated
therein if the Warrantholder had held the number of Common Shares acquirable
upon complete exercise of this Warrant immediately before the date on which a
record is taken for such Distribution, or, if no such record is taken, the date
as of which the record holders of Common Shares are to be determined for the
participation in such Distribution.
(e) Notice of Adjustments;
Notices. Whenever the Exercise Price or number of shares
hereunder shall be adjusted, the Company shall issue a certificate signed by its
President, Chief Executive Officer or Chief Financial Officer setting forth, in
reasonable detail, the event requiring the adjustment, the amount of the
adjustment, the method by which such adjustment was calculated and the Exercise
Price and number of shares hereunder after giving effect to such adjustment, and
shall cause a copy of such certificate to be mailed (by first class mail,
postage prepaid, with a copy by facsimile or electronic transmission) to the
Warrantholder. The Company shall give written notice to the Warrantholder at
least 20 days prior to the date on which the Company closes its books or takes a
record for determining rights to receive any dividends or
distributions.
(f) Notices of Corporate
Events. If the Company (i) shall take a record of the holders
of its Common Stock for the purpose of entitling them to receive any dividend or
other distribution of cash, securities or other property in respect of its
Common Stock, (ii) authorizes or approves any (a) capital reorganization of the
Company, (b) any reclassification of the capital stock of the Company, (c) any
consolidation or merger of the Company with or into another corporation, (d) any
sale of all or substantially all of its assets in one or a series of related
transactions or (e) any tender offer or exchange offer pursuant to which holders
of the Common Stock are permitted to tender or exchange their shares for other
securities, cash or property or (iii) authorizes the voluntary dissolution,
liquidation or winding up of the
Company, then the Company shall mail or cause to be mailed (with a copy by
facsimile or electronic transmission) to each Warrantholder a notice describing
the material terms and conditions of such transaction at least 20 calendar days
prior to the applicable record or effective date on which a person would need to
hold Common Stock in order to participate in or vote with respect to such
transaction, and the Company will take all steps reasonably necessary in order
to insure that the Warrantholder is given the practical opportunity to exercise
this Warrant prior to such time so as to participate in or vote with respect to
such transaction; provided, however, that the
failure to deliver such notice or any defect therein shall not affect the
validity of the corporate action required to be described in such
notice.
(g) No other Adjustments;
Warrant Certificates. Except as provided in this Section 4, no
other adjustments in the Exercise Price or the number or kind of securities
issuable upon exercise of this Warrant shall be made during the term of this
Warrant or upon exercise of this Warrant.
Irrespective
of any adjustments in the Exercise Price or the number or kind of securities
issuable upon the exercise of this Warrant, the Warrant certificate or
certificates theretofore or thereafter issued may continue to express the same
price or number or kind of securities stated in this Warrant initially issuable
hereunder.
5. Fractional
Interest.
The Company shall not be required to
issue fractional shares upon exercise of this Warrant but shall pay an amount of
cash equal to the then current trading price, or if there is no public market,
cash equal to the then fair market value of the shares as reasonably determined
by the Board of Directors of the Company, multiplied by such
fraction.
6.
Transfers of
Warrant
(a) Transfer,
etc. The Company shall from time to time register the transfer
of this Warrant on its books and records upon surrender of this Warrant
accompanied by a written instrument or instruments of transfer substantially in
the form of Exhibit B attached hereto, duly executed by the registered holder or
holders thereof or by the duly appointed legal representative thereof or by a
duly authorized attorney or by the duly authorized agent, provided, however, that the
Warrantholder shall have given at least five (5) Business Days prior notice
thereof to the Company, which notice shall include the identity of the
transferee. Upon any such registration of transfer, a new Warrant
shall be promptly issued to the transferee(s), in the denomination or
denominations specified in such instrument of transfer, and if requested by the
Warrantholder, the Company shall issue to the Warrantholder a new Warrant
evidencing the portion of this Warrant not so transferred.
(b) Transferee. Any
person in possession of this Warrant properly endorsed and, if not the original
holder hereof, to whom possession was transferred in accordance with the
provisions of this Section 6 is authorized to represent himself as absolute
owner hereof and is granted power to transfer absolute title hereto by
endorsement and delivery hereof to a bona fide purchaser hereof for value; each
prior Warrantholder, taker or owner waives and renounces all of his equities or
rights in this Warrant in favor of every such bona fide purchaser, and every
such bona fide purchaser shall acquire title hereto and to all rights
represented hereby.
(c) Applicable
Laws. The Company shall not be required to register any
transfer of this Warrant pursuant to Section 6 hereof if such registration or
transfer violates applicable laws, including applicable United States or other
securities laws.
7. No Rights as Shareholder
Conferred by Warrant.
This Warrant shall not entitle the
Warrantholder to any of the rights of a holder of any common stock of the
Company, including, without limitation, the right to receive dividends, if any,
or payments upon the liquidation, dissolution or winding up of the Company or to
exercise any voting rights.
8. Notices.
Any notice given pursuant to this
Warrant by the Company or by the Warrantholder shall be in writing and shall be
deemed to have been duly given upon (a) transmitter's confirmation of the
receipt of a facsimile transmission, (b) confirmed delivery by a standard
overnight carrier or (c) the expiration of five business days after the day when
mailed by certified or registered mail, return receipt requested, postage
prepaid at the addresses:
If to the Company:
80
Kiffissias Avenue
Amaroussion
15125
Athens,
Greece
Facsimile
No.: 011-30-210-809-0585
If to the Warrantholder, then to the
address of the Warrantholder in the Company's books and records.
Each party hereto may, from time to
time, change the address to which notices to it are to be transmitted, delivered
or mailed hereunder by written notice in accordance herewith to the other
party.
9. General
Provisions.
(a) Successors. All
the covenants and provisions of this Warrant shall bind and inure to the benefit
of the respective executors, administrators, successors and assigns of the
Warrantholder and the Company.
(b) Choice of
Law. THIS
WARRANT AND THE RIGHTS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL
MATTERS OF CONSTRUCTION, VALIDITY, PERFORMANCE, AND ENFORCEMENT, AND WITHOUT
GIVING EFFECT TO THE PRINCIPLES OF CONFLICT OF LAWS.
(c) Entire
Agreement. Except as provided herein, this Warrant, including
exhibits, contains the entire agreement of the parties, and supersedes all
existing negotiations, representations or agreements and other oral, written, or
other communications between them concerning the subject matter of this
Warrant.
(d) Severability. If
any provision of this Warrant is unenforceable, invalid, or violates applicable
law, such provision shall be deemed stricken and shall not affect the
enforceability of any other provisions of this Warrant.
(e) Captions. The
captions in this Warrant are inserted only as a matter of convenience and for
reference and shall not be deemed to define, limit, enlarge, or describe the
scope of this Warrant or the relationship of the parties, and shall not affect
this Warrant or the construction of any provisions herein.
(f) Amendments. This
Warrant may not be amended, and no provision or obligation herein may be waived,
other than by a writing duly executed by each of the Warrantholder and the
Company or, in the case of a waiver, by the party waiving
compliance.
IN WITNESS WHEREOF, the Company caused
this Warrant to be duly executed as of the date first above
written.
EXHIBIT
A
DRYSHIPS
INC.
ELECTION
TO PURCHASE WARRANT
DryShips
Inc.
80
Kiffissias Avenue
Amaroussion
15125
Athens,
Greece
Ladies
and Gentlemen:
The undersigned hereby irrevocably
elects to exercise the right of purchase set forth in the Warrant No. W - __
(the "Warrant"), to purchase thereunder ________ shares of the Common Stock
of DryShips Inc. (the "Shares") provided for therein and hereby
tenders $______ in payment of the actual exercise price thereof, and requests
that the Shares be issued in the name of
_______________________________________________
_______________________________________________
(Please
Print Name and Address of Warrantholder above)
Dated:
______________,
Name
of Warrantholder or Assignee:
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(Please
Print)
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Address:_______________________________
Signature:______________________________
EXHIBIT
B
DRYSHIPS
INC.
WARRANT
TRANSFER FORM
FOR VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto
____________________ the attached Warrant and appoints the Secretary of DryShips
Inc. (the "Company") as its, his or her attorney to transfer said right on the
books of the Company with full power of substitution in the
premises.
Dated:
__________________________
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(Signature
must conform in all
respects
to name of Warrantholder as
specified
on the face of the Warrant or on the
Company's
books and records)
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Address
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WARRANT
THIS
WARRANT AND THE SHARES OF COMMON STOCK ISSUED UPON ANY EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY
STATE SECURITIES OR BLUE SKY LAWS, AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF (I) AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND COMPLIANCE WITH SUCH STATE
LAWS OR (II) AN APPLICABLE EXEMPTION THEREFROM AND AN OPINION OF COUNSEL
SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT
REQUIRED. THIS WARRANT IS SUBJECT TO AN AGREEMENT BY THE REGISTERED
HOLDER WITH THE COMPANY NOT TO SELL THIS WARRANT FOR A PERIOD OF 180 DAYS
FOLLOWING THE DATE OF ISSUANCE HEREOF.
WARRANT
No. W -
3
For the
Purchase of 500,000 Shares of Common Stock
of
DryShips Inc.
(Organized
under the Laws of the Republic of the Marshall Islands)
This is to certify that, for value
received, Sphinx Investment Corp. or its, his or her permitted assigns
(hereinafter called the "Warrantholder"), is entitled, subject to the terms and
conditions hereinafter set forth, to purchase 500,000 shares of common stock
(the "Common Stock") of DryShips Inc., a Marshall Islands corporation
(hereinafter called the "Company"), from the Company at the purchase price of
$30.00 per share, and to receive a certificate or certificates for the shares so
purchased. This Warrant is first issued on April 8, 2009 (the
"Original Issue Date"), and shall remain outstanding until the Termination Date
(as defined below) subject to the following terms and conditions.
1. Terms and Exercise of
Warrant
(a) Exercise
Period. Subject to the terms of this Warrant, the
Warrantholder shall have the right, at any time during the period commencing on
October 8, 2010 and ending at 5:00 P.M., New York City time, on April 7, 2014
(the "Termination Date"), or if such date is a day on which banking institutions
in The City of New York or in Athens, Greece are authorized by law to close,
then on the next succeeding day which shall not be such a day (a "Business
Day"), to purchase from the Company up to the number of fully paid and
nonassessable shares of Common Stock which the Warrantholder may at the time be
entitled to purchase pursuant to this Warrant. Such shares of Common
Stock and other shares that the Company may be required by the operation of
Section 4 to issue upon the exercise hereof are referred to hereinafter as the
"Warrant Shares."
(b) Method of
Exercise. This Warrant shall be exercised by surrender to the
Company, at its principal office at 80 Kiffissias Avenue, Amaroussion 15125,
Athens, Greece, or at such other address as the Company may designate by notice
in writing to the Warrantholder at the address of the Warrantholder appearing on
the books of the Company or such other address as the Warrantholder may
designate in writing, of this Warrant certificate, together with the form of
Election to Purchase, included as Exhibit A hereto, duly completed and signed,
and upon payment to the Company of the Exercise Price (as defined in Section 3),
for the number of Warrant Shares with respect to which this Warrant is then
exercised together with all taxes and governmental fees and charges applicable
upon such exercise. Payment of the aggregate Exercise Price shall be
made in cash or by certified check or cashier's check drawn on a financial
institution reasonably acceptable to the Company, payable to the order of the
Company, or by wire transfer in immediately available funds to an account
specified by the Company. In the event
the Warrantholder elects to exercise only a portion of the number of Shares of
Common Stock which the Warrantholder is entitled to purchase pursuant to this
Warrant, the Company shall issue a new Warrant entitling the Warrantholder to
purchase the remaining number of Shares not yet exercised (the "New Warrant");
provided, however, all Shares
of Common Stock purchased pursuant to this Warrant and any New Warrants must be
purchased before the Termination Date.
(c) Share Issuance Upon
Exercise. Upon such surrender of this Warrant certificate and
payment of such Exercise Price as aforesaid, the Company shall promptly
thereafter issue to the Warrantholder in such name or names as the Warrantholder
may designate in writing, a certificate or certificates for the number of full
Warrant Shares so purchased upon the exercise of the Warrant, together with
cash, as provided in Section 5 hereof, with respect to any fractional Warrant
Shares otherwise issuable upon such surrender. Such certificate or
certificates shall be deemed to have been issued and any person so designated to
be named therein shall be deemed to have become a holder of such Warrant Shares
as of the close of business on the date of the surrender of this Warrant and
payment of the Exercise Price, as aforesaid, notwithstanding that the
certificates representing such Warrant Shares shall not actually have been
delivered or that the transfer books of the Company shall then be
closed.
2. Legend On Warrant
Shares.
Each certificate for Warrant Shares
initially issued upon exercise of this Warrant, unless at the time of exercise
such Warrant Shares are registered with the Securities and Exchange Commission
(the "Commission") under the Securities Act of 1933, as amended (the "Act"),
shall bear the following legend:
THE
SHARES OF COMMON STOCK REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES OR BLUE
SKY LAWS, AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF (I) AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT AND COMPLIANCE WITH SUCH STATE LAWS OR (II) AN APPLICABLE
EXEMPTION THEREFROM AND AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER THAT
SUCH REGISTRATION IS NOT REQUIRED.
Any certificate issued at any time in
exchange or substitution for any certificate bearing such legend (except a new
certificate issued upon completion of a public distribution pursuant to a
registration statement under the Act of the securities represented thereby)
shall also bear the above legend unless, in the opinion of such counsel as shall
be reasonably approved by the Company, the securities represented thereby need
no longer be subject to such restrictions.
3. Exercise
Price.
The price per share at which Warrant
Shares shall be purchasable on the exercise of this Warrant shall be $30.00 per
Share, subject to adjustment pursuant to Section 4 hereof (originally and as
adjusted, the "Exercise Price").
4. Adjustment of Exercise Price
and Number of Shares.
The
number of Warrant Shares issuable upon the exercise of this Warrant Certificate
and the Exercise Price shall be subject to adjustment from time to time upon the
occurrence of certain events, as follows:
(a) Merger. If
at any time there shall be a merger or consolidation of the Company with or into
another corporation when the Company is not the surviving corporation, then, as
part of such merger or consolidation, lawful provision shall be made so that the
Warrantholder shall thereafter be entitled to receive upon exercise of rights
herein granted, during the period specified herein and upon payment of the
aggregate Exercise Price, the number of shares of stock or other securities or
property of the successor corporation resulting from such merger or
consolidation, to which a holder of the stock deliverable
upon exercise of the rights granted in this Warrant would have been entitled in
such merger or consolidation if such rights had been exercised immediately
before such merger or consolidation. In any such case, appropriate
adjustment shall be made in the application of the provisions of this Warrant
with respect to the rights and interests of the Warrantholder after the merger
or consolidation. The Company will not effect any such merger or
consolidation unless, prior to the consummation thereof, the successor
corporation shall assume, by written instrument reasonably satisfactory in form
and substance to the Warrantholder, the obligations of the Company under this
Warrant.
(b) Reclassification,
Etc. If the Company at any time shall, by combination or
reclassification of securities or otherwise, change any of the securities as to
which purchase rights under this Warrant exist into the same or a different
number of securities of any other class or classes, this Warrant shall
thereafter represent the right to acquire such number and kind of securities as
would have been issuable as the result of such change with respect to the
securities which were subject to the purchase rights under this Warrant
immediately prior to such combination, reclassification or other
change.
(c) Stock Dividends, Splits,
Subdivisions or Combination of Shares. If the Company at any
time shall pay a stock dividend on its Common Stock or otherwise makes a
distribution on any class of capital stock that is payable in shares of Common
Stock, or splits or subdivides its Common Stock, the Exercise Price shall be
proportionately decreased and the number of Warrant Shares issuable pursuant to
this Warrant shall be proportionately increased. If the Company at
any time shall combine or reverse split its Common Stock, the Exercise Price
shall be proportionately increased and the number of Warrant Shares issuable
pursuant to this Warrant shall be proportionately decreased.
(d) Distribution of
Assets. If the Company shall declare or make any dividend or
other distribution of its non-cash assets (or rights to acquire its assets) to
holders of Common Shares, by way of return of capital or otherwise (including,
without limitation, any distribution of stock or other securities, property or
options by way of a dividend, spin off, reclassification, corporate
rearrangement, scheme of arrangement or other similar transaction) (a
"Distribution"), at any time after the issuance of this Warrant, then, in each
such case, the Warrantholder shall be entitled to participate in such
Distribution to the same extent that the Warrantholder would have participated
therein if the Warrantholder had held the number of Common Shares acquirable
upon complete exercise of this Warrant immediately before the date on which a
record is taken for such Distribution, or, if no such record is taken, the date
as of which the record holders of Common Shares are to be determined for the
participation in such Distribution.
(e) Notice of Adjustments;
Notices. Whenever the Exercise Price or number of shares
hereunder shall be adjusted, the Company shall issue a certificate signed by its
President, Chief Executive Officer or Chief Financial Officer setting forth, in
reasonable detail, the event requiring the adjustment, the amount of the
adjustment, the method by which such adjustment was calculated and the Exercise
Price and number of shares hereunder after giving effect to such adjustment, and
shall cause a copy of such certificate to be mailed (by first class mail,
postage prepaid, with a copy by facsimile or electronic transmission) to the
Warrantholder. The Company shall give written notice to the Warrantholder at
least 20 days prior to the date on which the Company closes its books or takes a
record for determining rights to receive any dividends or
distributions.
(f) Notices of Corporate
Events. If the Company (i) shall take a record of the holders
of its Common Stock for the purpose of entitling them to receive any dividend or
other distribution of cash, securities or other property in respect of its
Common Stock, (ii) authorizes or approves any (a) capital reorganization of the
Company, (b) any reclassification of the capital stock of the Company, (c) any
consolidation or merger of the Company with or into another corporation, (d) any
sale of all or substantially all of its assets in one or a series of related
transactions or (e) any tender offer or exchange offer pursuant to which holders
of the Common Stock are permitted to tender or exchange their shares for other
securities, cash or property or (iii) authorizes the voluntary dissolution,
liquidation or winding up of the Company, then the Company shall mail or cause
to be mailed (with a copy by facsimile or electronic transmission) to each
Warrantholder a notice describing the material terms and conditions of such
transaction at least 20 calendar days prior to the applicable record or
effective date on which a person would
need to hold Common Stock in order to participate in or vote with respect to
such transaction, and the Company will take all steps reasonably necessary in
order to insure that the Warrantholder is given the practical opportunity to
exercise this Warrant prior to such time so as to participate in or vote with
respect to such transaction; provided, however, that the
failure to deliver such notice or any defect therein shall not affect the
validity of the corporate action required to be described in such
notice.
(g) No other Adjustments;
Warrant Certificates. Except as provided in this Section 4, no
other adjustments in the Exercise Price or the number or kind of securities
issuable upon exercise of this Warrant shall be made during the term of this
Warrant or upon exercise of this Warrant.
Irrespective
of any adjustments in the Exercise Price or the number or kind of securities
issuable upon the exercise of this Warrant, the Warrant certificate or
certificates theretofore or thereafter issued may continue to express the same
price or number or kind of securities stated in this Warrant initially issuable
hereunder.
5. Fractional
Interest.
The Company shall not be required to
issue fractional shares upon exercise of this Warrant but shall pay an amount of
cash equal to the then current trading price, or if there is no public market,
cash equal to the then fair market value of the shares as reasonably determined
by the Board of Directors of the Company, multiplied by such
fraction.
6. Transfers of
Warrant
(a) Transfer,
etc. The Company shall from time to time register the transfer
of this Warrant on its books and records upon surrender of this Warrant
accompanied by a written instrument or instruments of transfer substantially in
the form of Exhibit B attached hereto, duly executed by the registered holder or
holders thereof or by the duly appointed legal representative thereof or by a
duly authorized attorney or by the duly authorized agent, provided, however, that the
Warrantholder shall have given at least five (5) Business Days prior notice
thereof to the Company, which notice shall include the identity of the
transferee. Upon any such registration of transfer, a new Warrant
shall be promptly issued to the transferee(s), in the denomination or
denominations specified in such instrument of transfer, and if requested by the
Warrantholder, the Company shall issue to the Warrantholder a new Warrant
evidencing the portion of this Warrant not so transferred.
(b) Transferee. Any
person in possession of this Warrant properly endorsed and, if not the original
holder hereof, to whom possession was transferred in accordance with the
provisions of this Section 6 is authorized to represent himself as absolute
owner hereof and is granted power to transfer absolute title hereto by
endorsement and delivery hereof to a bona fide purchaser hereof for value; each
prior Warrantholder, taker or owner waives and renounces all of his equities or
rights in this Warrant in favor of every such bona fide purchaser, and every
such bona fide purchaser shall acquire title hereto and to all rights
represented hereby.
(c) Applicable
Laws. The Company shall not be required to register any
transfer of this Warrant pursuant to Section 6 hereof if such registration or
transfer violates applicable laws, including applicable United States or other
securities laws.
7. No Rights as Shareholder
Conferred by Warrant.
This Warrant shall not entitle the
Warrantholder to any of the rights of a holder of any common stock of the
Company, including, without limitation, the right to receive dividends, if any,
or payments upon the liquidation, dissolution or winding up of the Company or to
exercise any voting rights.
Any notice given pursuant to this
Warrant by the Company or by the Warrantholder shall be in writing and shall be
deemed to have been duly given upon (a) transmitter's confirmation of the
receipt of a facsimile transmission, (b) confirmed delivery by a standard
overnight carrier or (c) the expiration of five business days after the day when
mailed by certified or registered mail, return receipt requested, postage
prepaid at the addresses:
If to the Company:
80
Kiffissias Avenue
Amaroussion
15125
Athens,
Greece
Facsimile
No.: 011-30-210-809-0585
If to the Warrantholder, then to the
address of the Warrantholder in the Company's books and records.
Each party hereto may, from time to
time, change the address to which notices to it are to be transmitted, delivered
or mailed hereunder by written notice in accordance herewith to the other
party.
9. General
Provisions.
(a) Successors. All
the covenants and provisions of this Warrant shall bind and inure to the benefit
of the respective executors, administrators, successors and assigns of the
Warrantholder and the Company.
(b) Choice of
Law. THIS
WARRANT AND THE RIGHTS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL
MATTERS OF CONSTRUCTION, VALIDITY, PERFORMANCE, AND ENFORCEMENT, AND WITHOUT
GIVING EFFECT TO THE PRINCIPLES OF CONFLICT OF LAWS.
(c) Entire
Agreement. Except as provided herein, this Warrant, including
exhibits, contains the entire agreement of the parties, and supersedes all
existing negotiations, representations or agreements and other oral, written, or
other communications between them concerning the subject matter of this
Warrant.
(d) Severability. If
any provision of this Warrant is unenforceable, invalid, or violates applicable
law, such provision shall be deemed stricken and shall not affect the
enforceability of any other provisions of this Warrant.
(e) Captions. The
captions in this Warrant are inserted only as a matter of convenience and for
reference and shall not be deemed to define, limit, enlarge, or describe the
scope of this Warrant or the relationship of the parties, and shall not affect
this Warrant or the construction of any provisions herein.
(f) Amendments. This
Warrant may not be amended, and no provision or obligation herein may be waived,
other than by a writing duly executed by each of the Warrantholder and the
Company or, in the case of a waiver, by the party waiving
compliance.
IN WITNESS WHEREOF, the Company caused
this Warrant to be duly executed as of the date first above
written.
EXHIBIT
A
DRYSHIPS
INC.
ELECTION
TO PURCHASE WARRANT
DryShips
Inc.
80
Kiffissias Avenue
Amaroussion
15125
Athens,
Greece
Ladies
and Gentlemen:
The undersigned hereby irrevocably
elects to exercise the right of purchase set forth in the Warrant No. W - __
(the "Warrant"), to purchase thereunder ________ shares of the Common Stock
of DryShips Inc. (the "Shares") provided for therein and hereby
tenders $______ in payment of the actual exercise price thereof, and requests
that the Shares be issued in the name of
_______________________________________________
_______________________________________________
(Please
Print Name and Address of Warrantholder above)
Dated:
______________,
Name
of Warrantholder or Assignee:
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(Please
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Address:_______________________________
Signature:______________________________
EXHIBIT
B
DRYSHIPS
INC.
WARRANT
TRANSFER FORM
FOR VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto
____________________ the attached Warrant and appoints the Secretary of DryShips
Inc. (the "Company") as its, his or her attorney to transfer said right on the
books of the Company with full power of substitution in the
premises.
Dated:
__________________________
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(Signature
must conform in all
respects
to name of Warrantholder as
specified
on the face of the Warrant or on the
Company's
books and records)
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Address
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