SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
(RULE 13D-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO 13D
1(a) AND AMENDMENTS THERETO FILED PURSUANT TO 13D-2(a)
(AMENDMENT NO. )*
Ponder Industries, Inc.
(Name of Issuer)
Common Stock, $.01 par value
(Title of Class and Securities)
732378104
(CUSIP Number)
Copy to:
Roger Bartlett Patrick J. Foye, Esq.
Wood Gundy (London) Limited Skadden, Arps et al.
Cottons Centre, Cottons Lane 919 Third Avenue
London, SE12QL United Kingdom New York, New York 10022
(44)(171) 234-7555 (212) 735-2274
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications)
October 1, 1997
(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 which is the subject of this Schedule 13D,
and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the
following box: ( )
Note: Six copies of this statement, including all exhibits, should
be filed with the Commission. See Rule 13d-1(a) for other parties to
whom copies are to be sent.
- -------------
* The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect to the
subject class of securities, and for any subsequent amendment containing
information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall
not be deemed to be "filed" for the purpose of Section 18 of the
Securities Exchange Act of 1934 or otherwise subject to the liabilities
of that section of the Act but shall be subject to all other provisions
of the Act (however, see the Notes).
CUSIP No. 732378104 13D
- ------------------------------------------------------------------------
(1) NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Cameron Capital Ltd.
I.R.S. # None
- ------------------------------------------------------------------------
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) ( )
(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
Bermuda
- ------------------------------------------------------------------------
(7) SOLE VOTING POWER
NUMBER OF 0
SHARES ------------------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY 120,000
EACH ------------------------------------------
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON 120,000
WITH ------------------------------------------
(10) SHARED DISPOSITIVE POWER
0
- -----------------------------------------------------------------------
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
120,000
- ------------------------------------------------------------------------
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* (X)
- ------------------------------------------------------------------------
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.43%
- ------------------------------------------------------------------------
(14) TYPE OF REPORTING PERSON*
IV
- ------------------------------------------------------------------------
* SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP No. 732378104 13D
- ------------------------------------------------------------------------
(1) NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Wood Gundy (London) Limited
I.R.S. # None
- ------------------------------------------------------------------------
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) ( )
(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
United Kingdom
- ------------------------------------------------------------------------
(7) SOLE VOTING POWER
NUMBER OF 0
SHARES ------------------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY 132,500
EACH ------------------------------------------
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON 132,500
WITH ------------------------------------------
(10) SHARED DISPOSITIVE POWER
0
- ------------------------------------------------------------------------
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
132,500
- ------------------------------------------------------------------------
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* (X)
- ------------------------------------------------------------------------
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.48%
- ------------------------------------------------------------------------
(14) TYPE OF REPORTING PERSON*
IV
- ------------------------------------------------------------------------
* SEE INSTRUCTIONS BEFORE FILLING OUT!
ITEM 1: SECURITY AND ISSUER
The Statement relates to the common stock, $.01 par value per
share ("Common Stock"), of Ponder Industries, Inc. (the "Issuer"),
which has its principal executive office at 5005 Riverway Drive,
Suite 550, Houston, Texas 77056.
ITEM 2: IDENTITY AND BACKGROUND
(a) This statement is being filed by (i) Cameron Capital Ltd. and
(ii) Wood Gundy (London) Limited ("WGL") (collectively, the
"Reporting Persons"). Other persons who may be deemed to be members
of a "group" with the Reporting Persons but who are not
participating in this joint filing are (i) AG Superfund
International Partners, L.P., (ii) The Gifford Fund, (iii) Darissco
Diversified Investments, Inc., (iv) GAM Arbitrage, Inc., (v) KA
Investments, LDC, (vi) Lake Management LDC, (vii) Leonardo, L.P.,
(viii) Raphael, L.P., (ix) Richcourt $ Strategies, Inc., (x) The
Tail Wind Fund and (xi) Windward Island Limited (the "Non-filers"
and, together with the Reporting Persons, the "Investors").
The Investors do not have any agreements among themselves
concerning the acquisition, holding, voting or disposal of any
securities of the Issuer, and therefore the Reporting Persons do
not believe that the Investors constitute a "group" within the
meaning of Section 13(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"). The only agreement to which the
Investors are parties relating to the Common Stock is the
Settlement Agreement (as hereinafter defined), which provides for
each of the Investors to receive shares of Common Stock and
immediately exercisable warrants to purchase additional shares of
Common Stock (the "Warrants"). To the extent that the Settlement
Agreement, however, may be construed as an agreement which makes
the Investors a "group" for Section 13(d) purposes, the Reporting
Persons are filing this statement. Since the Investors do not have
any other agreements among themselves concerning the transfer,
holding, voting or disposal of the Common Stock or the Warrants,
even if they are deemed to be a "group" due to the Settlement
Agreement, the Reporting Persons believe that the Investors would
cease to be a "group" upon receiving the Common Stock and the
Warrants, and therefore would not have any further filing
obligations after this statement. Thus, the filing of this
statement should not be construed as an admission on the part of
any of the Reporting Persons that it is the beneficial owner of any
shares of Common Stock reported herein, or held by any of the
Non-filers, that are not specifically attributed to it in the
applicable cover page of this statement. In fact, pursuant to Rule
13d-4 under the Exchange Act, each of the Reporting Persons
expressly disclaims that it is the beneficial owner of any shares
of Common Stock reported herein, or held by any of the Non-filers,
that are not specifically attributed to it in the applicable cover
page of this statement.
As used hereinafter, the term "Controlling Person" means,
with respect to any Reporting Person that is a general partnership,
limited partnership, syndicate or other group, (i) each partner of
such general partnership, (ii) each partner who is denominated as a
general partner or who functions as a general partner of such
limited partnership, (iii) each member of such syndicate or group,
and (iv) each person controlling such partner or member. With
respect to any Reporting Person that is a corporation, the term
"Controlling Person" means, (i) each executive officer and director
of such corporation, (ii) each person controlling such corporation,
and (iii) each executive officer and director of any corporation or
other person ultimately in control of such corporation.
(1) Cameron is a corporation organized under the laws of Bermuda.
The four directors of Cameron are:
a) Jeremy Peele
b) Nic Snelling
c) Dudley Cottingham
d) Arthur Morris
The two executive officers of Cameron are:
a) Jeremy Peele (Chairman and Chief Executive Officer)
b) Nic Snelling (Chief Financial Officer)
Cameron is wholly-owned by Cameron Trust, a discretionary
trust domiciled in Bermuda (the "Trust"). The sole beneficiary of
the Trust is Jeremy Peele, and the trustee of the Trust is
Continental Management Ltd., whose directors include Dudley
Cottingham and Arthur Morris.
Jeremy Peele, Nic Snelling, Dudley Cottingham and Arthur Morris
are British citizens.
(2) WGL is a corporation organized under the laws of the United
Kingdom.
The three directors of WGL are:
a) Ronald Lalonde
b) Anthony Porter
c) Shashi Tanna
The three executive officers of WGL are:
a) Ronald Lalonde (Bank Executive)
b) Anthony Porter (Bank Executive)
c) Shashi Tanna (Bank Executive)
Anthony Porter and Shashi Tanna are British Citizens. Ronald
Lalonde is a Canadian Citizen.
(b)
(1) The address of the principal executive office of Cameron, and
the business address of Jeremy Peele and Nic Snelling, is 10
Cavendish Road, Hamilton, Bermuda HM 19. The business address of
Dudley Cottingham and Arthur Morris is Century House, Richmond
Road, Hamilton, Bermuda.
(2) The address of the principal executive office of WGL, and the
business address of Ronald Lalonde, Anthony Porter and Shashi
Tanna, is Cottons Centre, Cottons Lane, London SE12QL United
Kingdom.
(c)
(1) The principal business of Cameron is investing in publicly
traded securities. The principal occupation of Jeremy Peele is
serving as Chairman and Chief Executive Officer of Cameron. The
principal occupation of Nic Snelling is serving as Chief Financial
Officer of Cameron. The principal occupation of Dudley Cottingham
is serving as director of both Cameron and Continental Management
Ltd.. The principal occupation of Arthur Morris is serving as
director of both Cameron and Continental Management Ltd.. The
principal business of Continental Management Ltd. is trust
management services.
The address of the principal business of Cameron, and of the
principal place of employment of Jeremy Peele and Nic Snelling, is
10 Cavendish Road, Hamilton, Bermuda HM 19. The address of the
principal place of employment of Dudley Cottingham and Arthur
Morris is Century House, Richmond Road, Hamilton, Bermuda.
(2) The principal business of WGL is marking name, whereby the
company is responsible for the custody and administration of
investments belonging to its customers. The principal occupation of
each of Ronald Lalonde, Anthony Porter and Shashi Tanna is serving
as a director and a Bank Executive of WGL.
The address of the principal executive office of WGL, and the
address of the principal place of employment of Ronald Lalonde,
Anthony Porter and Shashi Tanna, is Cottons Centre, Cottons Lane,
London SE12QL United Kingdom.
(d) During the last five years, none of the Reporting Persons, or
any of the Controlling Persons affiliated with the Reporting
Persons, has been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors).
(e) During the last five years, none of the Reporting Persons, or
any of the Controlling Persons affiliated with the Reporting
Persons, was a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of
such proceeding was or is subject to a judgment, decree or final
order enjoining future violations of, or prohibiting or mandating
activities subject to, Federal or State securities laws or finding
any violation with respect to such laws.
ITEM 3: SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
The Investors received shares of Common Stock, and
immediately exercisable Warrants, pursuant to a settlement
agreement, dated September 26, 1997, by and among the Investors,
the Issuer, Eugene L. Butler and Larry Armstrong (the "Settlement
Agreement"). The Investors did not use funds to purchase the Common
Stock; instead, each of the Investors converted the principal
balance of the 8.0% convertible debentures of the Issuer, due April
26, 1999 (the "Convertible Debentures"), owned by it into shares of
Common Stock, based on a conversion ratio of $0.60 per share of
Common Stock, as set forth in the Settlement Agreement. The
Investors did not use funds to purchase the Warrants either;
instead, pursuant to the Settlement Agreement, the Issuer
delivered, to each of the Investors, Warrants sufficient to
purchase a number of shares of Common Stock equal to 15% of the
principal balance of the Convertible Debentures owned by it, based
on an exercise price of $1.00 per share of Common Stock. The
outstanding principal balance of the Convertible Debentures owned
by each of the Investors as of the date of the Settlement Agreement
is set forth below:
Principal Balance of
Investor Convertible Debentures
-------- ----------------------
AG Superfund International Partners, L.P. $ 150,000.00
The Gifford Fund $ 750,000.00
Cameron Capital Ltd. $ 800,000.00
Darissco Diversified Investments, Inc. $ 180,000.00
GAM Arbitrage, Inc. $ 250,000.00
KA Investments, LDC $ 150,000.00
Lake Management LDC $ 850,000.00
Leonardo, L.P. $1,250,000.00
Raphael, L.P. $ 300,000.00
Richcourt $ Strategies, Inc. $ 200,000.00
The Tail Wind Fund $ 600,000.00
Windward Island Limited $ 150,000.00
Wood Gundy (London) Limited $ 750,000.00
-------------
Total $6,380,000.00
ITEM 4: PURPOSE OF TRANSACTION
The Common Stock and the Warrants received by the Reporting
Persons pursuant to the Settlement Agreement are intended by the
Reporting Persons to be held solely for investment purposes. Except
for the transactions involving the Common Stock and the Warrants
reported in Item 5(c) herein, and except for the expectation that
the Reporting Persons may from time to time purchase and/or sell
shares of Common Stock or the Warrants (depending upon market
conditions, availability or need for funds, and other factors
personal to each such Reporting Person), none of the Reporting
Persons has any present plans or proposals with respect to the
Issuer that relate to or could result in the occurrence of any of
the following events:
(a) The acquisition by any person of additional securities of the
Issuer, or the disposition of additional securities of the
Issuer;
(b) An extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving the Issuer or any of
its subsidiaries;
(c) A sale or transfer of a material amount of assets of the
Issuer or any of its subsidiaries;
(d) Any change in the present board of directors or management of
the Issuer, including any plans or proposals to change the
number or term of directors to fill any existing vacancies on
the board;
(e) Any material change in the present capitalization or dividend
policy of the Issuer;
(f) Any other material change in the Issuer's business or
corporate structure;
(g) Changes in the Issuer's charter, bylaws or instruments
corresponding thereto or other actions which may impede the
acquisition of control of the Issuer by any person;
(h) Causing a class of securities of the Issuer to be delisted
from a national securities exchange or to cease to be
authorized to be quoted in an inter-dealer quotation system
of a registered national securities association;
(i) A class of equity securities of the Issuer becoming eligible
for termination of registration pursuant to Section 12(g)(4)
of the Exchange Act; or
(j) Any action similar to any of those enumerated above.
ITEM 5: INTEREST IN SECURITIES OF THE ISSUER
(a) As of the start of business on Monday, October 13, 1997, the
Reporting Persons may be deemed to beneficially own the following
numbers of shares of Common Stock:
<TABLE>
<CAPTION>
Number of Additional Shares
Shares Receivable Upon
Personally Exercise of
Name Owned the Warrants Percentage*
---------------------------- ------------- ------------------ -----------
<S> <C> <C> <C>
1) Cameron Capital Ltd. 0 120,000 0.43
2) Wood Gundy (London) Limited 20,000 112,500 0.48
</TABLE>
- ------------
* Percentages are calculated in accordance with Rule 13d-3(d)(1) on
the basis of 16,891,506 outstanding shares of Common Stock (as
reported in the Issuer's Quarterly Report on Form 10-Q for the
quarter ended May 31, 1997, as filed on July 14, 1997), and as
adjusted for the 10,633,333 shares of Common Stock issued, in the
aggregate, to the Investors pursuant to the Settlement Agreement,
and as adjusted on a pro forma basis for the potential issuance to
the Investors of, in the aggregate, 957,000 shares of Common Stock
pursuant to the Warrants.
None of the Controlling Persons beneficially owns shares of
Common Stock that are not already attributed to Reporting Persons
herein.
(b) Each of the Reporting Persons has sole dispositive discretion
with respect to all of the shares of Common Stock beneficially
owned by such Reporting Person, as reported in Item 5(a) herein.
Each of the Reporting Persons shares voting power with the
president of the Issuer, ex-officio, with respect to all of the
shares of Common Stock beneficially owned by such Reporting Person,
as reported in Item 5(a) herein.
The current president of the Issuer is Eugene L. Butler
("Butler"). Butler's business address is 5005 Riverway Drive, Suite
550, Houston, Texas 77056. Butler's present principal occupation is
president, chief executive officer and chairman of the board of
directors of the Issuer. Butler is an American citizen. During the
last five years, Butler has not been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors).
During the last five years, Butler has not been a party to a civil
proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject
to a judgment, decree or final order enjoining future violations
of, or prohibiting or mandating activities subject to, Federal or
State securities laws or finding any violation with respect to such
laws.
(c) Pursuant to the Settlement Agreement, on October 1, 1997 the
Investors converted, at a conversion ratio of $0.60 per share of
Common Stock, their Convertible Debentures into, in the aggregate,
10,633,333 shares of Common Stock, and also received Warrants for,
in the aggregate, 957,000 shares of Common Stock, exercisable at a
warrant price of $1.00 per share. Pursuant to the Settlement
Agreement, the Investors received the following shares of Common
Stock:
Additional Shares
Receivable Upon
Number of Shares Exercise of
Name Personally Owned the Warrants
---------------------------- ---------------- -----------------
1) AG Superfund International 250,000 22,5000
Partners, L.P.
2) The Gifford Fund 1,250,000 112,500
3) Cameron Capital Ltd. 1,333,333 120,000
4) Darissco Diversified 300,000 27,000
Investments, Inc.
5) GAM Arbitrage, Inc. 416,667 38,000
6) KA Investments, LDC 250,000 22,500
7) Lake Management LDC 1,416,667 127,500
8) Leonardo, L.P. 2,083,333 187,500
9) Raphael, L.P. 500,000 45,000
10) Richcourt $ Strategies, Inc. 333,333 30,000
11) The Tail Wind Fund 1,000,000 90,000
12) Windward Island Limited 250,000 22,500
13) Wood Gundy (London) Limited 1,250,000 112,500
In the 60 days prior to the start of business on Monday,
October 13, 1997, the Reporting Persons effected the following
transactions regarding the Common Stock:
Number of Dollar Price per Where and how
Nature of Shares of Share of Common transaction
Date Transaction Common Stock Stock affected
- -------- ---------- --------------- ------------------ -------------
CAMERON
10/06/97 Sale 130,000 .59 NASDAQ
10/06/97 Sale 100,000 .63 NASDAQ
10/06/97 Sale 50,000 .66 NASDAQ
10/06/97 Sale 50,000 .69 NASDAQ
10/06/97 Sale 50,000 .69 NASDAQ
10/06/97 Sale 32,100 .72 NASDAQ
10/07/97 Sale 15,000 .81 NASDAQ
10/07/97 Sale 50,000 .78 NASDAQ
10/07/97 Sale 75,000 .81 NASDAQ
10/07/97 Sale 25,000 .84 NASDAQ
10/07/97 Sale 50,000 .88 NASDAQ
10/07/97 Sale 50,000 .91 NASDAQ
10/07/97 Sale 50,000 .94 NASDAQ
10/07/97 Sale 25,000 .97 NASDAQ
10/07/97 Sale 100,000 .94 NASDAQ
10/07/97 Sale 50,000 .97 NASDAQ
10/07/97 Sale 30,000 .94 NASDAQ
10/07/97 Sale 50,000 .94 NASDAQ
10/07/97 Sale 20,000 .94 NASDAQ
10/09/97 Sale 75,000 .91 NASDAQ
10/09/97 Sale 5,000 .94 NASDAQ
10/10/97 Sale 75,000 .94 NASDAQ
10/10/97 Sale 50,000 .97 NASDAQ
10/10/97 Sale 25,000 1.00 NASDAQ
10/10/97 Sale 50,000 1.06 NASDAQ
10/10/97 Sale 25,000 1.09 NASDAQ
10/13/97 Sale 10,000 1.50 NASDAQ
10/13/97 Sale 16,233 1.53 NASDAQ
WGL
10/06/97 Sale 600,000 .52 NASDAQ
10/06/97 Sale 100,000 .50 NASDAQ
10/07/97 Sale 95,000 .88 NASDAQ
10/07/97 Sale 50,000 .75 NASDAQ
10/08/97 Sale 155,000 .87 NASDAQ
10/08/97 Sale 70,000 .78 NASDAQ
10/09/97 Sale 65,000 .85 NASDAQ
10/09/97 Sale 25,000 .97 NASDAQ
10/10/97 Sale 60,000 1.02 NASDAQ
10/10/97 Sale 10,000 1.47 NASDAQ
(d) AND (e) not applicable.
ITEM 6 CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER
In the spring of 1996, the Investors purchased the
Convertible Debentures for an aggregate consideration of
$10,950,000. The Convertible Debentures were convertible into
Common Stock at a price equal to the lower of (a) 100% of the
average Closing bid price of the Common Stock for the five trading
days ending on April 26, 1996, or (b) 85% of the average closing
bid price of the Common Stock for the five trading days immediately
preceding the date of conversion. One-third of the Convertible
Debentures became eligible for conversion on each of the dates
beginning 45 days, 75 days and 105 days after April 30, 1996.
In August 1996, Cameron Capital Ltd., and Lake Management LDC
and KA Investments, LDC, filed separate lawsuits against the
Issuer; each of the lawsuits were based on breach of contract
claims arising from the Issuer's refusal to convert any of the
outstanding Convertible Debentures into Common Stock. The Issuer
filed counterclaims and third-party claims against each of the
remaining Investors.
The Investors entered into the Settlement Agreement with the
Issuer, Butler and Larry Armstrong, the former president, chief
executive officer and chairman of the board of directors of the
Issuer ("Armstrong"), on September 26, 1997. The Settlement
Agreement required each of the Investors to execute a Stipulation
of Dismissal With Prejudice and Without Costs ("Dismissal"), which
dismissed with prejudice all claims that it may have against the
Issuer, Butler and Armstrong, and required each of the Issuer,
Butler and Armstrong to execute a Dismissal with respect to all
claims that each such person may have had against the Investors.
The Settlement Agreement also required the Issuer to convert,
at a conversion price of $0.60 a share, the Convertible Debentures
held by each of the Reporting Persons into shares of Common Stock.
Further, the Settlement Agreement required the Issuer to issue, to
each of the Investors, Warrants sufficient to purchase a number of
additional shares of Common Stock having an aggregate purchase
price equal to 15% of the aggregate principal balance of the
Convertible Debentures held by each such Investor, at a price of
$1.00 per share.
The Settlement Agreement also required each of the Investors,
with respect to the receipt of the Common Stock and Warrants
pursuant to the Settlement Agreement, to execute an irrevocable
proxy granting the president of the Issuer, ex-officio, the right
to vote such shares of Common Stock, and any shares of Common Stock
issued pursuant to such Warrants, for the election of the persons
nominated as directors by the board of directors of the Issuer at
each annual or special meeting of shareholders of the Issuer. With
respect to each such share of Common Stock, the proxy granted shall
expire on the earlier of the tenth anniversary of the date of the
Settlement Agreement or the transfer of such share.
ITEM 7: MATERIAL TO BE FILED AS EXHIBITS
EXHIBIT A
The Settlement Agreement
EXHIBIT B
Form of the proxy granted to the president of the Issuer by
each of the Investors
EXHIBIT C
Form of Warrant to purchase Common Stock
EXHIBIT D
Joint Filing Agreement
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.
Dated: October 14, 1997 CAMERON CAPITAL LTD.
By: /s/ Nic Snelling
---------------------------
Name: Nic Snelling
Title: Chief Financial Officer
WOOD GUNDY (LONDON) LIMITED
By: /s/ Roger Bartlett
---------------------------
Name: Roger Bartlett
Title: Associate
EXHIBIT A
SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release (the "Settlement
Agreement") is made as of September 26, 1997 (the "Effective Date") by
and among Ponder Industries, Inc. ("Ponder"), Eugene L. Butler
("Butler"), Larry Armstrong ("Armstrong") and all of the debenture
holders listed in paragraph 1 below (each being referred to individually
as "Investor" and all being referred to collectively as "Investors").
In consideration of the mutual promises and covenants
contained herein and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, Ponder, Butler,
Armstrong, and the Investors agree as follows:
1. Unless otherwise noted, as used herein,
"Claims" means all actions, causes of action, suits, debts,
dues, sums of money, accounts, controversies, agreements, promises,
variances, trespasses, damages, judgments, abstracts of judgments, liens,
executions, claims, and demands, losses and liabilities, of every kind
and nature, in law or equity, and in whatever form denominated, including
without limitation claims, counterclaims, cross-claims and/or third party
claims, related to or arising from the Debentures, the offering or
subscription of the Debentures, or the subject matter of the Lawsuit that
Ponder or the Investors asserted or could have asserted in the Lawsuit
from the beginning of time to the Effective Date of this settlement.
"Debentures" means Ponder Industries, Inc. 8% Convertible
Debentures Due April 26, 1999, including without limitation the governing
subscription agreement and all documents or agreements necessary or
related thereto.
"Investor" or "Investors" means, individually or
collectively, AG Superfund International Partners, L.P., The Gifford
Fund, Cameron Capital Ltd., Darissco Diversified Investments, Inc., GAM
Arbitrage, Inc., KA Investments, LDC, Lake Management LDC, Leonardo,
L.P., Raphael, L.P., Richcourt $ Strategies, Inc., The Tail Wind Fund,
Windward Island Limited, and Wood Gundy London, Ltd.
"Lawsuit" means all allegations and/or matters related to or
contained in Civil Action No. 96-CV-9357T, Cameron Capital Ltd. v. Ponder
Industries, Inc.., in the United States District Court for the Western
District of New York, and in Civil Action No. 96-CV-6534T, Lake
Management LDC and KA Investments LDC v. Ponder Industries, Inc., in the
United States District Court for the Western District of New York.
"Outstanding Unredeemed Balance" means, with respect to each
of the following Investors, the following dollar amounts:
INVESTOR OUTSTANDING UNREDEEMED BALANCE
- -------- ------------------------------
AG Superfund International Partners, L.P. $ 150,000.00
The Gifford Fund $ 750,000.00
Cameron Capital Ltd. $ 800,000.00
Darissco Diversified Investments, Inc. $ 180,000.00
GAM Arbitrage, Inc. $ 250,000.00
KA Investments, LDC $ 150,000.00
Lake Management LDC $ 850,000.00
Leonardo, L.P. $1,250,000.00
Raphael, L.P. $ 300,000.00
Richcourt $ Strategies, Inc. $ 200,000.00
The Tail Wind Fund $ 600,000.00
Windward Island Limited $ 150,000.00
Wood Gundy London, Ltd. $ 750,000.00
-------------
$6,380,000.00
=============
For the sake of convenience, the number of shares to be
issued pursuant to paragraph 4 hereof are as follows:
INVESTOR NUMBER OF SHARES
- -------- ----------------
AG Superfund International Partners, L.P. 250,000
The Gifford Fund 1,250,000
Cameron Capital Ltd. 1,333,333
Darissco Diversified Investments, Inc. 300,000
GAM Arbitrage, Inc. 416,667
KA Investments, LDC 250,000
Lake Management LDC 1,416,667
Leonardo, L.P. 2,083,333
Raphael, L.P. 500,000
Richcourt $ Strategies, Inc. 333,333
The Tail Wind Fund 1,000,000
Windward Island Limited 250,000
Wood Gundy London, Ltd. 1,250,000
----------
10,633,333
"Swartz" means Eric S. Swartz or any entity he directly or
indirectly owns or controls, including without limitation Swartz
Investments L.L.C. and/or Swartz Investments, Inc., as well as any of
their officers, directors, employees, partners, shareholders,
representatives, subsidiaries or affiliates.
2. Within two (2) business days after delivery to each
Investor of the common stock certificates as required by paragraph 4
hereof and the 5-year non-callable warrants required by paragraph 6
hereof, counsel to each of the parties shall execute a Stipulation of
Dismissal With Prejudice and Without Costs in the form attached as
Exhibit "A" (the "Stipulation of Dismissal"), which will dismiss with
prejudice all Claims of the parties to this Settlement Agreement against
each other; provided, however, that neither Ponder nor the Investors are
releasing or are dismissing any of their Claims against Swartz, and
Ponder and the Investors expressly reserve and retain all such Claims.
The fully-executed Stipulation of Dismissal shall be delivered to the law
firm of Nixon, Hargrave, Devans & Doyle, attention: Carolyn G. Nussbaum,
Esq., which will, within two (2) business days after receiving the same,
cause it to be filed with the Court with an accompanying request that the
Stipulation of Dismissal be "So Ordered" by the Court.
3. Each of Ponder, Butler and Armstrong, on the one hand, and
the Investors, on the other hand, together with each of their respective
predecessors, successors, heirs, executors, administrators, assigns,
parent companies, subsidiaries and affiliates, their past and present
directors, officers, employees, agents, servants, attorneys, shareholders
and/or partners hereby remise, release, acquit and forever discharge each
other, and each other's respective predecessors, successors, heirs,
executors, administrators, assigns, parent companies, subsidiaries and
affiliates, their past and present directors, officers, employees,
agents, attorneys (including without limitation each of the attorneys and
law firms that appeared in the Lawsuit on behalf of any party to this
Settlement Agreement), servants, shareholders, and/or partners from any
and all Claims; provided, however, that each and all of the parties to
this Settlement Agreement specifically preserve, and this release shall
not apply to, any and all Claims that each or all of the parties hereto
ever had, now have or hereafter can, shall or may have against Swartz;
and provided further that the foregoing release shall not affect, waive,
limit, modify or otherwise change in any manner the obligations or
liabilities of any party under this Settlement Agreement or any
instrument or agreement executed and delivered pursuant to this
Settlement Agreement, which shall remain in full force and effect.
4. Ponder agrees to convert, or cause to be converted, each
Investor's Outstanding Unredeemed Balance and issue shares of Ponder
common stock to each said Investor at a conversion price of $0.60/share,
subject to adjustments for stock splits, reverse splits and the like,
with no restrictions placed upon the sale of such common stock. Within
three (3) business days of the Effective Date, Ponder shall cause to be
delivered to the Investors certificates representing such freely tradable
shares, without restrictions and bearing no legend. Ponder warrants that
such shares will be unrestricted, freely tradable and will not bear any
legend. Ponder further warrants that it will never interfere with or do
anything intentionally to prevent, impede or delay any Investor's freely
trading any shares issued pursuant to this Settlement Agreement, and
Ponder acknowledges that this is a material representation on which each
Investor will rely in executing this Settlement Agreement and without
which no Investor would execute this Settlement Agreement. If, following
the Effective Date, an Investor requests that the certificates
representing such shares be reregistered in street or nominee name, and
if Ponder's transfer agent fails to comply with such request within
thirty days following such request, any release executed by such Investor
shall be null and void, and such Investor shall no longer be bound by
this Settlement Agreement, and as to such Investor this Settlement
Agreement shall become null and void and shall have no further force and
effect and neither this Settlement Agreement, any of its provisions, nor
any of the negotiations and proceedings relating thereto: (a) shall be
offered, received in evidence or otherwise used in the Lawsuit or in any
other action or proceeding for any purpose, or (b) shall prejudice the
rights of any of the parties hereto, who shall be restored to their
respective positions immediately prior to the execution of this
Settlement Agreement. Further, Ponder agrees that in the event subsequent
transfers of such shares are prohibited or enjoined by order of any court
or other governmental body, it shall, at its expense, upon the written
request of Investors holding 10% or more of the Outstanding Unredeemed
Balance, promptly file and cause to become effective a registration
statement covering the resale of the shares of Ponder common stock issued
to the Investors and the shares underlying the warrants held by the
Investors, as described in paragraph 6 hereof. In such event, Ponder
shall notify the other Investors and offer them the opportunity to
participate in such registration. The other Investors shall have ten (10)
days from the date of Ponder's notice to notify Ponder in writing of
their desire to participate. Ponder shall be required to file only one
registration statement pursuant to this paragraph (provided that it
becomes effective).
5. In conjunction with the issuance of the shares of Ponder
common stock to the Investors, each Investor agrees to execute an
irrevocable proxy, on behalf of itself and its principals and affiliates,
granting the President of Ponder, ex-officio, the right to vote the
shares of common stock issued to Investors pursuant to paragraphs 4 and 6
for the election of the persons nominated as Directors by the Board of
Directors of Ponder at each annual or special meeting of stockholders of
Ponder; provided, however, that Investors will not transfer or exchange
their shares with anyone solely for the purpose of terminating any such
proxy, and it is understood, without limitation, that a cash sale of
shares to unaffiliated third-parties with no restrictions or contractual
buyback rights is presumed not to be a transfer or exchange solely for
the purpose of terminating such proxy; and provided further that this
proxy shall expire on the earlier of the tenth anniversary of the
effective date of this Settlement Agreement or the transfer or exchange
of such shares in compliance with the preceding proviso.
6. Within three (3) business days of the Effective Date,
Ponder will deliver to each Investor 5-year non-callable warrants
sufficient to purchase a number of additional shares of Ponder common
stock having an aggregate purchase price equal to 15% of each Investor's
Outstanding Unredeemed Balance at a price of $1.00/share, such shares to
be unrestricted, freely tradable, unlegended and subject to the same
provisions and protections described in paragraph 4 and with the same
attendant registration rights described in paragraph 4 hereof. In the
event that prior to the date upon which any or all of the warrants are
exercised, Ponder shall (a) declare a dividend or make a distribution on
the outstanding shares of its common stock in shares of common stock, (b)
subdivide or reclassify the outstanding shares of its common stock into a
greater number of shares, or (c) combine or reclassify the outstanding
shares of its common stock into a smaller number of shares, then the
terms of all outstanding warrants shall be adjusted accordingly. In the
event that prior to the expiration of the warrants Ponder merges with or
into, or all of the outstanding common stock of Ponder is acquired by,
another person or entity, the terms of the warrants shall provide that
the holders of the warrants shall have the right thereafter upon payment
of the exercise price to purchase upon exercise of a warrant the kind and
amount of securities or cash receivable upon such consolidation or merger
had the warrant been exercised immediately prior to such action.
7. The Investors agree (a) to assign to Ponder, to the
maximum extent permitted by the law of whichever state Ponder selects to
govern said assignments, any and all Claims they each may have against
Swartz, and (b) to execute any and all documents Ponder may reasonably
deem necessary to assign and prosecute at Ponder's expense such Claims;
provided, however, that, in addition to paying expenses (including legal
expenses) in connection with such cooperation and assistance, Ponder
agrees to take steps to minimize any inconvenience or burden upon the
Investors and agrees to maintain as confidential such assignments except
as may be required by law or necessary for the prosecution or settlement
of such Claims.
8. In the event that any Person (a"Third Party"), including
without limitation Swartz, asserts a claim against any or all of the
Investors which seeks to require that such Investor(s) pay to such Third
Party (by way of contribution, indemnification or otherwise, directly or
indirectly) (a) an amount in respect of the sums paid by such Third Party
to Ponder or an amount sought from such Third Party by Ponder, and (b)
which in any way relates to the subject matter of the Lawsuit or this
Settlement Agreement ("Third Party Claim"), then Ponder shall take
whatever actions are necessary to cause the dismissal with prejudice of
any/all such Third Party Claim(s), including, but not limited to, the
dismissal of Ponder's claims against the Third Party to the extent
contribution is sought against any or all of the Investors, within ten
(10) days of notice to Ponder of such Third Party Claim(s). In addition,
in the event any such Third Party Claim(s) is/are asserted, Ponder hereby
agrees to indemnify and hold harmless each and all of the Investors for
all such amounts sought thereby, plus attorneys' fees, costs and expenses
incurred by each and all of the Investors in connection with such Third
Party Claim(s), up to the amount which Ponder has collected or seeks to
collect from such Third Party(ies). In addition to the foregoing, it is
agreed that the provisions of New York General Obligations Law Section
15-108 shall be applicable in their entirety to the settlement provided
herein.
9. Ponder warrants that it is solvent, that the transactions
contemplated by this Settlement Agreement will not directly or indirectly
result in its insolvency, and that it has no present plans or intention
to file for or otherwise seek relief or protection under the bankruptcy
laws of the United States. Ponder further warrants that, for a period
ending 366 days after the Effective Date, if Ponder files a voluntary
petition in bankruptcy, or otherwise has an order for relief entered
under 11 U.S.C. ss. 101 et seq., Ponder shall, at the sole discretion and
written request of the Investors, convert back to Debentures all or some
of the shares issued hereunder (according to the Investors' Outstanding
Unredeemed Balances as defined herein) and, to the extent Ponder may
lawfully do so, restore the parties to the status quo ante in every
respect.
10. Ponder, Butler, Armstrong, and the Investors each
represent that prior to the execution of this Settlement Agreement they
have fully informed themselves of its terms, contents, conditions and
effects and that no promise or representation of any kind has been made
to them except as expressly stated in this Settlement Agreement. Ponder,
Butler, Armstrong, and the Investors each represent that they have relied
solely and completely upon their own judgment and the advice of their
counsel in signing this Settlement Agreement and that this document
represents and expresses the entire agreement by and among the Investors
and Ponder, Butler and Armstrong concerning the subjects it purports to
cover.
11. Ponder, Butler and Armstrong represent and warrant to the
Investors, and the Investors represent and warrant to Ponder, Butler and
Armstrong that they have not sold, assigned, transferred, conveyed or
otherwise disposed of any claim, demand, right or cause of action,
relating to any matter which is covered by this Settlement Agreement,
that each is the sole owner of such claim, demand, right or cause of
action, and each has the power and authority and has been duly authorized
to enter into and perform this Settlement Agreement, and that this
agreement is the binding obligation of each, enforceable in accordance
with its terms.
12. Neither the execution of this Settlement Agreement nor
anything herein contained is intended to be, nor shall be construed to
be, an admission by Ponder, Butler and Armstrong or the Investors of any
liability to the other, now, in the past or in the future, or an
admission of the existence of facts upon which liability could be based.
This Settlement Agreement is contractual and it has been entered into to
compromise disputed claims and to avoid the uncertainty and expense of
further litigation. This Settlement Agreement and each of its provisions
and any orders of the Court relating to it shall not be offered or
received in evidence in this Lawsuit or in any other action or proceeding
or otherwise used as an admission or concession as to the merits of the
Lawsuit or the liability of any nature on the part of any of the parties
hereto except to enforce its terms.
13. It is expressly understood and agreed that except for the
persons and entities listed in paragraph 3 hereof as being released,
there are no intended third party beneficiaries of this Settlement
Agreement and that no persons other than the parties hereto shall have
the rights and privileges to enforce the provisions of this Settlement
Agreement.
14. This Settlement Agreement may be amended, modified,
waived or discharged only be mutual written agreement of the affected
parties hereto. Any such amendment, modification, waiver or discharge
shall not be deemed a waiver of any other provision of this Settlement
Agreement unless so specified.
15. Notwithstanding the place where this Settlement Agreement
may be executed by any of the parties, or any other factor, all terms and
provisions hereof shall be governed by and construed in accordance with
the laws of the State of New York applicable to agreements made and to be
fully performed in that State and without regard to the principles of
conflicts of laws thereof and any action brought to enforce, or otherwise
arising out of this Settlement Agreement, shall be brought only in either
a federal or state court sitting in the state of New York.
16. The failure of a party to insist upon strict adherence to
any of the terms of this Settlement Agreement on any occasion shall not
be considered a waiver thereof or deprive that party of the right
thereafter to insist upon strict adherence to that term or any other term
of this Settlement Agreement.
17. This Settlement Agreement and the Stipulation of
Dismissal together constitute the entire agreement among the parties
hereto with respect to the subject matter hereof, and supersede all prior
and contemporaneous agreements, negotiations, correspondence,
undertakings and communications of the parties, oral or written,
respecting such subject matter.
18. This Settlement Agreement may be executed in multiple
originals or counterparts, each of which shall be deemed an original for
all purposes, but all such counterparts together shall constitute one and
the same instrument. Facsimile copies of this Settlement Agreement shall
be considered originals for all purposes.
19. Ponder, Butler, Armstrong, and the Investors hereby
agree, on their behalf and on behalf of their agents, employees, and
legal and other representatives that they each will keep confidential the
terms of this settlement hereunder and the other terms of this Settlement
Agreement, and that they will not disclose said terms to anyone other
than their counsel of record. Notwithstanding the foregoing, nothing
contained herein shall prevent the parties from responding to any inquiry
about this settlement or its underlying facts and circumstances by the
Securities and Exchange Commission, any self-regulatory organization or
disclosing this Settlement Agreement or its terms if ordered to do so by
a court of competent jurisdiction or if otherwise required to do so by
law.
20. The parties hereto agree to execute, have acknowledged
and deliver to each other such other documents and instruments, if any,
as may be necessary or appropriate to evidence or carry out the terms of
this Settlement Agreement.
21. This Settlement Agreement shall be deemed to have been
mutually prepared by the parties hereto and shall not be construed
against any of them solely by reason of authorship.
22. This Settlement Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
legal representatives and successors; provided, however, that no
assignment by any party hereto shall operate to relieve such party of its
obligations hereunder.
IN WITNESS WHEREOF, the parties hereto have executed this
Settlement Agreement as of the date herein written above.
Dated: September 26, 1997
--------------------------------------
PONDER INDUSTRIES, INC.
By: /s/ Eugene L. Butler
-----------------------------------
EUGENE L. BUTLER
/s/ Eugene L. Butler
--------------------------------------
EUGENE L. BUTLER
/s/ Larry Armstrong
--------------------------------------
LARRY ARMSTRONG
--------------------------------------
CAMERON CAPITAL LTD.
By: /s/ Nic Snelling
--------------------------------------
NIC SNELLING
--------------------------------------
AG SUPERFUND INTERNATIONAL
PARTNERS, L.P.
By: /s/ Michael L. Gordon
--------------------------------------
MICHAEL L. GORDON
--------------------------------------
GAM ARBITRAGE, INC.
By: /s/ Michael L. Gordon
--------------------------------------
MICHAEL L. GORDON
--------------------------------------
LEONARDO, L.P.
By: /s/ Michael L. Gordon
--------------------------------------
MICHAEL L. GORDON
--------------------------------------
RAPHAEL, L.P.
By: /s/ Michael L. Gordon
--------------------------------------
MICHAEL L. GORDON
--------------------------------------
THE GIFFORD FUND
By: /s/ M.I. San Katsing
--------------------------------------
M.I. SAN KATSING
--------------------------------------
DARISSCO DIVERSIFIED INVESTMENTS, INC.
By: /s/ David Katznelson
--------------------------------------
DAVID KATZNELSON
--------------------------------------
KA INVESTMENTS, LDC
By: /s/ Edwin Dikali
--------------------------------------
EDWIN DIKALI
--------------------------------------
LAKE MANAGEMENT LDC
By: /s/ Edwin Dikali
--------------------------------------
EDWIN DIKALI
--------------------------------------
RICHCOURT $ STRATEGIES, INC.
By: /s/ David Nolan
--------------------------------------
DAVID NOLAN
--------------------------------------
THE TAIL WIND FUND
By: /s/ Joan Sherry
--------------------------------------
JOAN SHERRY
--------------------------------------
WINDWARD ISLAND LIMITED
By: /s/ J.D. Hassan
--------------------------------------
J.D. HASSAN
--------------------------------------
WOOD GUNDY LONDON, LTD.
By: /s/ M.J. Gleeson
--------------------------------------
M.J. GLEESON
EXHIBIT B
PONDER INDUSTRIES, INC.
IRREVOCABLE PROXY
The undersigned stockholder of Ponder Industries, Inc., a
Delaware corporation (the "Company"), hereby appoints the President of
the Company, ex-officio, as proxy of the undersigned with full power of
substitution to vote for each share issued pursuant to paragraphs 4 and 6
of that certain Settlement Agreement and Release dated September 26, 1997
(the "Settlement Agreement" and the "Share" or the "Shares") in any
election of directors of the Company at any annual meeting or special
meeting of stockholders of the Company held at any time prior to
September 26, 2007, and at any adjournment thereof, the number of votes
which the undersigned would be entitled to cast if personally present.
This proxy is irrevocable and coupled with an interest and is
given to the President of the Company, ex-officio, pursuant to the
Settlement Agreement to which this proxy is subject, including the
limitations on the use hereof as described therein. This proxy shall
continue in effect as to each such Share under the first to occur of (1)
a bona fide sale, transfer or exchange of that Share, it being understood
that a "bona fide sale, transfer or exchange" shall expressly include any
cash sale of the Shares to unaffiliated third parties with no
restrictions, or (2) until September 26, 2007.
___________________________________________
By:
___________________________________________
Signature of Stockholder(s)
Dated: ______________________________, 1997
EXHIBIT C
THIS WARRANT AND THE SHARES OF COMMON STOCK OF PONDER INDUSTRIES, INC. TO
BE ISSUED UPON ANY EXERCISE OF THE WARRANT HAVE NOT BEEN REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE SECURITIES LAWS, AND MAY NOT BE SOLD OR TRANSFERRED
OR OFFERED FOR SALE OR TRANSFER UNLESS A REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND OTHER APPLICABLE SECURITIES LAWS WITH RESPECT TO SUCH
SECURITIES IS THEN IN EFFECT, OR IN THE OPINION OF COUNSEL, SUCH
REGISTRATION UNDER THE SECURITIES ACT AND OTHER APPLICABLE SECURITIES
LAWS IS NOT REQUIRED.
WARRANT
to Purchase Shares
of
Common Stock
of
PONDER INDUSTRIES, INC.
September 26, l997
This certifies that, for value received, [ ]
and any subsequent transferee of this Warrant (each, a "Holder") is
entitled to purchase, subject to the provisions of this Warrant, from
Ponder Industries, Inc. (the "Issuer") at any time or from time to time
on or after the date hereof and on or before September 26, 2002 (the
"Expiration Date"), [ ] [( )] fully paid and nonassessable
shares of common stock (the "Common Stock"), of the Issuer at an exercise
price of One Dollar ($1.00) per share, subject to adjustment pursuant to
the terms hereunder (the "Exercise Price") (such shares of Common Stock and
other securities issued and issuable upon exercise of this Warrant sometimes
are referred to herein as the "Warrant Shares").
Section 1) Definitions. Capitalized terms not otherwise defined
herein shall have the meanings assigned to them in the Settlement
Agreement and Release (the "Settlement Agreement") dated September 26,
l997 between and among the Holder, the Issuer and certain other entities
and individual parties thereto.
Section 2) Exercise of Warrant.
(a) Subject to the provisions hereof, this Warrant may be
exercised, in whole or in part, but not as to a fractional share, at any
time or from time to time on or after the date hereof and on or before
the Expiration Date, by presentation and surrender hereof to the Issuer
at the address which, in accordance with the provisions of Section 9
hereof, is then effective for notices to the Issuer, with the Election to
Purchase Form annexed hereto as Schedule One, duly executed and
accompanied by payment to the Issuer as further set forth below in this
Section 2, for the account of the Issuer, of the Exercise Price for the
number of Warrant Shares specified in such form. If this Warrant should
be exercised in part only, the Issuer shall, upon surrender of this
Warrant, execute and deliver a new Warrant evidencing the rights of the
Holder hereof to purchase the balance of the Warrant Shares purchasable
hereunder. The Issuer shall maintain at its principal place of business a
register for the registration of this Warrant and registration of
transfer of this Warrant. The Exercise Price for the number of Warrant
Shares specified in the Election to Purchase Form shall be payable in
United States Dollars by certified or official bank check payable to the
order of the Issuer or by wire transfer of immediately available funds to
an account specified by the Issuer for that purpose.
(b) Certificates representing Warrant Shares shall bear the
following restrictive legend:
"The shares represented by this certificate have not been
registered under the Securities Act of l933, as amended (the
"Securities Act"). They may not be offered or transferred by sale,
assignment, pledge or otherwise unless (i) a registration statement
for the securities under the Securities Act is in effect or (ii)
the corporation has received an opinion of counsel, which opinion
is satisfactory to the corporation, to the effect that such
registration is not required under the Securities Act."
(c) Notwithstanding any provisions herein to the contrary, if the
Fair Market Value (hereinafter defined) of one share of Common
Stock is greater than the Exercise Price (at the date of
calculation as set forth below), in lieu of exercising this Warrant
for cash, the Holder may elect to receive shares equal to the value
(as determined below) of this Warrant (or the portion thereof being
canceled) by surrender of this Warrant at the principal office of
the Issuer together with the properly endorsed Notice of Exercise
and notice of such election in which event the Issuer shall issue
to the Holder a number of shares of Common Stock computed using the
following formula:
X = Y (A-B)
-------
A
Where X = the number of shares of Common Stock to be issued
to the Holder
Y = the number of shares of Common Stock purchasable
under the Warrant or, if only a portion of the
Warrant is being exercised, the portion of the
Warrant being canceled (at the date of such
calculation)
A = the Fair Market Value of one share of the
Issuer's Common Stock (at the date of such
calculation)
B = Exercise Price (as adjusted to the date of such
calculation)
For purposes of the above calculation, Fair Market Value of one
share of Common Stock shall be the average closing bid price
(as reported by The Nasdaq Stock Market) of the Issuer's Common
Stock for the five (5) consecutive trading days ending on the
trading day immediately preceding the date of the Election to
Purchase.
Section 3) Reservation of Shares; Preservation of Rights of Holder.
The Issuer hereby agrees that there shall be reserved for issuance and/or
delivery upon exercise of this Warrant, such number of Warrant Shares as
shall be required for issuance or delivery upon exercise of this Warrant.
The Warrant surrendered upon exercise shall be canceled by the Issuer.
After the Expiration Date, no shares of Common Stock shall be subject to
reservation in respect of this Warrant. The Issuer further agrees (i)
that it will not, by amendment of its Certificate of Incorporation or
through reorganization, consolidation, merger, dissolution or sale of
assets, or by any other voluntary act, avoid or seek to avoid the
observation or performance of any of the covenants, stipulations or
conditions to be observed or performed hereunder by the Issuer, (ii)
promptly to take such action as may be required of the Issuer to permit
the Holder to exercise this Warrant and the Issuer duly and effectively
to issue shares of its Common Stock or other securities as provided
herein upon the exercise hereof, and (iii) promptly to take all action
required or provided herein to protect the rights of the Holder granted
hereunder against dilution. Without limiting the generality of the
foregoing, should the Warrant Shares at any time consist in whole or in
part of shares of capital stock having a par value, the Issuer agrees
that before taking any action which would cause an adjustment of the
Exercise Price so that the same would be less than the then par value of
such Warrant Shares, the Issuer shall take any corporate action which
may, in the opinion of its counsel, be necessary in order that the Issuer
may validly and legally issue fully paid and nonassessable shares of such
Common Stock at the Exercise Price as so adjusted. The Issuer further
agrees that it will not establish a par value for its Common Stock while
this Warrant is outstanding in an amount greater than the Exercise Price.
Section 4) Exchange, Transfer, Assignment or Loss of Warrant. Any
attempted transfer of this Warrant, the Warrant Shares or any new Warrant
not in accordance with this Section shall be null and void, and the
Issuer shall not in any way be required to give effect to such transfer.
No transfer of this Warrant shall be effective for any purpose hereunder
until (i) written notice of such transfer and of the name and address of
the transferee has been received by the Issuer, and (ii) the transferee
shall first agree in a writing deposited with the Secretary of the Issuer
to be bound by all the provisions of this Warrant. Upon surrender of this
Warrant to the Issuer by any transferee authorized under the provisions
of this Section 4, the Issuer shall, without charge, execute and deliver
a new Warrant registered in the name of such transferee at the address
specified by such transferee, and this Warrant shall promptly be
canceled. The Issuer may deem and treat the registered holder of any
Warrant as the absolute owner thereof for all purposes, and the Issuer
shall not be affected by any notice to the contrary. Any Warrant, if
presented by an authorized transferee, may be exercised by such
transferee without prior delivery of a new Warrant issued in the name of
the transferee.
Upon receipt by the Issuer of evidence reasonably satisfactory to
it of the loss, theft, destruction or mutilation of this Warrant, and (in
the case of loss, theft or destruction) of reasonably satisfactory
indemnification, and upon surrender and cancellation of this Warrant, if
mutilated, the Issuer will execute and deliver a new Warrant of like
tenor and date. Any such new Warrant executed and delivered shall
constitute a separate contractual obligation on the part of the Issuer,
whether or not the Warrant so lost, stolen, destroyed or mutilated shall
be at any time enforceable by anyone.
Section 5) Rights of Holder. Neither a Holder nor his transferee by
devise or the laws of descent and distribution or otherwise shall be, or
have any rights or privileges of, a stockholder of the Issuer with
respect to any Warrant Shares, unless and until certificates representing
such Warrant Shares shall have been issued and delivered thereto.
Section 6) Adjustments in Exercise Price and Warrant Shares. The
Exercise Price and Warrant Shares shall be subject to adjustment from
time to time as provided in this Section 6.
(d) If the Issuer is recapitalized through the subdivision or
combination of its outstanding shares of Common Stock into a larger or
smaller number of shares, the number of shares of Common Stock for which
this Warrant may be exercised shall be increased or reduced, as of the
record date for such recapitalization, in the same proportion as the
increase or decrease in the outstanding shares of Common Stock, and the
Exercise Price shall be adjusted so that the aggregate amount payable for
the purchase of all Warrant Shares issuable hereunder immediately after
the record date for such recapitalization shall equal the aggregate
amount so payable immediately before such record date.
(e) If the Issuer declares a dividend on Common Stock, or makes a
distribution to holders of Common Stock, and such dividend or
distribution is payable or made in Common Stock or securities convertible
into or exchangeable for Common Stock, or rights to purchase Common Stock
or securities convertible into or exchangeable for Common Stock, the
number of shares of Common Stock for which this Warrant may be exercised
shall be increased, as of the record date for determining which holders
of Common Stock shall be entitled to receive such dividend or
distribution, in proportion to the increase in the number of outstanding
shares (and shares of Common Stock issuable upon conversion of all such
securities convertible into Common Stock) of Common Stock as a result of
such dividend or distribution, and the Exercise Price shall be adjusted
so that the aggregate amount payable for the purchase of all the Warrant
Shares issuable hereunder immediately after the record date for such
dividend or distribution shall equal the aggregate amount so payable
immediately before such record date.
(f) If the Issuer declares a dividend on Common Stock (other than a
dividend covered by subsection (b) above) or distributes to holders of
its Common Stock, other than as part of its dissolution or liquidation or
the winding up of its affairs, any shares of its capital stock, any
evidence of indebtedness or any cash or other of its assets (other than
Common Stock or securities convertible into or exchangeable for Common
Stock), the Holder shall receive notice of such event as set forth in
Section 8 below.
(g) In case of any consolidation of the Issuer with, or merger of
the Issuer into, any other corporation (other than a consolidation or
merger in which the Issuer is the continuing corporation and in which no
change occurs in its outstanding Common Stock), or in case of any sale or
transfer of all or substantially all of the assets of the Issuer, or in
the case of any statutory exchange of securities with another corporation
(including any exchange effected in connection with a merger of a third
corporation into the Issuer, except where the Issuer is the surviving
entity and no change occurs in its outstanding Common Stock), the
corporation formed by such consolidation or the corporation resulting
from such merger or the corporation which shall have acquired such assets
or securities of the Issuer, as the case may be, shall execute and
deliver to the Holder simultaneously therewith a new Warrant,
satisfactory in form and substance to the Holder, together with such
other documents as the Holder may reasonably request, entitling the
Holder thereof to receive upon exercise of such Warrant the kind and
amount of shares of stock and other securities and property receivable
upon such consolidation, merger, sale, transfer, or exchange of
securities, or upon the dissolution following such sale or other
transfer, by a holder of the number of shares of Common Stock purchasable
upon exercise of this Warrant immediately prior to such consolidation,
merger, sale, transfer, or exchange. Such new Warrant shall contain the
same basic other terms and conditions as this Warrant and shall provide
for adjustments which, for events subsequent to the effective date of
such written instrument, shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section 6. The above
provisions of this paragraph (d) shall similarly apply to successive
consolidations, mergers, exchanges, sales or other transfers covered
hereby.
(h) If the Issuer shall, at any time before the expiration of this
Warrant, sell all or substantially all of its assets and distribute the
proceeds thereof to the Issuer's stockholders, the Holder shall, upon
exercise of this Warrant have the right to receive, in lieu of the shares
of Common Stock of the Issuer that the Holder otherwise would have been
entitled to receive, the same kind and amount of assets as would have
been issued, distributed or paid to the Holder upon any such distribution
with respect to such shares of Common Stock of the Issuer had the Holder
been the holder of record of such shares of Common Stock receivable upon
exercise of this Warrant on the date for determining those entitled to
receive any such distribution. If any such distribution results in any
cash distribution in excess of the Exercise Price provided by this
Warrant for the shares of Common Stock receivable upon exercise of this
Warrant, the Holder may, at the Holder's option, exercise this Warrant
without making payment of the Exercise Price and, in such case, the
Issuer shall, upon distribution to the Holder, consider the Exercise
Price to have been paid in full and, in making settlement to the Holder,
shall obtain receipt of the Exercise Price by deducting an amount equal
to the Exercise Price for the shares of Common Stock receivable upon
exercise of this Warrant from the amount payable to the Holder.
(i) If an event occurs which is similar in nature to the events
described in this Section 6, but is not expressly covered hereby, the
Board of Directors of the Issuer shall make or arrange for an equitable
adjustment to the number of Warrant Shares and the Exercise Price.
(j) The term "Common Stock" shall mean the Common Stock of the
Issuer as the same exists at the date hereof or as such stock may be
constituted from time to time, except that for the purpose of this
Section 6, the term "Common Stock" shall include any stock of any class
of the Issuer which has no preference in respect of dividends or of
amounts payable in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Issuer and which is not subject to
redemption by the Issuer.
(k) The Issuer shall retain a firm of independent public
accountants of recognized standing (who may be any such firm regularly
employed by the Issuer) to make any computation required under this
Section 6, and a certificate signed by such firm shall be conclusive
evidence of the correctness of any computation made under this Section 6.
(l) Whenever the number of Warrant Shares or the Exercise Price
shall be adjusted as required by the provisions of this Section 6, the
Issuer forthwith shall file in the custody of its secretary or an
assistant secretary, at its principal office, and furnish to each Holder
hereof, a certificate prepared in accordance with paragraph (h) above,
showing the adjusted number of Warrant Shares and the adjusted Exercise
Price and setting forth in reasonable detail the circumstances requiring
the adjustments.
(m) Notwithstanding any other provision, this Warrant shall be
binding upon and inure to the benefit of any successors and assigns of
the Issuer.
(n) No adjustment in the Exercise Price in accordance with the
provisions of this Section 6 need be made if such adjustment would amount
to a change in such Exercise Price of less than $.01; provided however,
that the amount by which any adjustment is not made by reason of the
provisions of this paragraph (k) shall be carried forward and taken into
account at the time of any subsequent adjustment in the Exercise Price.
(o) If an adjustment is made under this Section 6 and the event to
which the adjustment relates does not occur, then any adjustments in
accordance with this Section 6 shall be readjusted to the Exercise Price
and the number of Warrant Shares which would be in effect had the earlier
adjustment not been made.
Section 7) Taxes on Issue or Transfer of Common Stock and Warrant.
The Issuer shall pay any and all documentary stamp or similar issue or
transfer taxes payable in respect of the issue or delivery of shares of
Common Stock or other securities on the exercise of this Warrant. The
Issuer shall not be required to pay any tax which may be payable in
respect of any transfer of this Warrant or in respect of any transfers
involved in the issue or delivery of shares or the exercise of this
Warrant in a name other than that of the Holder and the person requesting
such transfer, issue or delivery shall be responsible for the payment of
any such tax (and the Issuer shall not be required to issue or deliver
said shares until such tax has been paid or provided for).
Section 8) Notice of Adjustment. So long as this Warrant shall be
outstanding, (a) if the Issuer shall propose to pay any dividends or make
any distribution upon the Common Stock, or (b) if the Issuer shall offer
generally to the holders of Common Stock the right to subscribe to or
purchase any shares of any class of Common Stock or securities
convertible into Common Stock or any other similar rights, or (c) if
there shall be any proposed capital reorganization of the Issuer in which
the Issuer is not the surviving entity, recapitalization of the capital
stock of the Issuer, consolidation or merger of the Issuer with or into
another corporation, sale, lease or other transfer of all or
substantially all of the property and assets of the Issuer, or voluntary
or involuntary dissolution, liquidation or winding up of the Issuer, or
(d) if the Issuer shall give to its stockholders any notice, report or
other communication respecting any significant or special action or
event, then in such event, the Issuer shall give to the Holder, at least
ten (10) days prior to the relevant date described below, a notice
containing a description of the proposed action or event and stating the
date or expected date on which a record of the Issuer's stockholders is
to be taken for any of the foregoing purposes, and the date or expected
date on which any such dividend, distribution, subscription,
reclassification, reorganization, consolidation, combination, merger,
conveyance, sale, lease or transfer, dissolution, liquidation or winding
up is to take place and the date or expected date, if any is to be fixed,
as of which the holders of Common Stock of record shall be entitled to
exchange their shares of Common Stock for securities or other property
deliverable upon such event.
Section 9) Notice. Any notice to be given or to be served upon any
party in connection with the Warrant must be in writing and will be
deemed to have been given and received upon confirmed receipt, if sent by
facsimile, or two (2) days after it has been submitted for delivery by
Federal Express or an equivalent carrier, charges prepaid and addressed
to the following addresses with a confirmation of delivery:
If to the Issuer, to:
Ponder Industries, Inc.
511 Commerce Road
Post Office Drawer 2229
Alice, Texas 78333
Attn: Eugene L. Butler
Telephone: (512) 664-5831
Facsimile: (512) 664-8451
If the Holder, to:
Any party may, at any time by giving notice to the other party, designate
any other address in substitution of an address established pursuant to the
foregoing to which such notice will be given.
Section 10. Registration Rights. The Holder shall be entitled to
the benefit of the registration rights set forth in the Settlement
Agreement.
Section 11. Governing Law; Choice of Forum. This Warrant shall be
governed by and construed in accordance with the laws of the State of New
York applicable to agreements made and to be fully performed in that
State and without regard to the principles of conflicts of laws thereof,
and any action brought to enforce, or otherwise arising out of this
Warrant, shall be brought only in either a federal or state court sitting
in the State of New York.
[signature page follows]
Dated: [ ], l997
PONDER INDUSTRIES, INC.
By:__________________________
Name: Eugene L. Butler
Title: Chairman & Chief Executive Officer
ATTEST:
- ----------------------------
Shirley Meyer, Secretary
[Signature Page to Warrant to Purchase Shares of Common Stock
of Ponder Industries, Inc.]
Schedule One
ELECTION TO PURCHASE
The undersigned hereby irrevocably elects to exercise this Warrant
and to purchase _______ shares of Ponder Industries, Inc. Common Stock
issuable upon the exercise of this Warrant, and requests that
certificates for such shares be issued in the name of:
_________________________________________________________________________
(Name)
_________________________________________________________________________
(Address)
_________________________________________________________________________
(United States Social Security or other taxpayer
identifying number, if applicable)
and, if different from above, be delivered to:
_________________________________________________________________________
(Name)
_________________________________________________________________________
(Address)
and, if the number of Warrant Shares so purchased are not all of the
Warrant Shares issuable upon exercise of this Warrant, that a Warrant to
purchase the balance of such Warrant Shares be registered in the name of,
and delivered to, the undersigned at the address stated below.
Date: ______________ ___, ____
Name of Registered Owner: ___________________________________
_________________________________________________________________________
Address: ________________________________________________________________
_________________________________________________________________________
Signature: ______________________________________________________________
EXHIBIT D
JOINT FILING AGREEMENT
PURSUANT TO RULE 13d-1(f)(1)
The undersigned acknowledges and agrees that the foregoing
statement on Schedule 13D is filed on behalf of each of the undersigned
and that all subsequent amendments to this statement on Schedule 13D
shall be filed on behalf of each of the undersigned without the necessity
of filing additional joint filing statements. The undersigned
acknowledges that each of the undersigned shall be responsible for the
timely filing of this statement on Schedule 13D, and of such subsequent
amendments, and for the completeness and accuracy of the information
concerning it contained herein, and in subsequent amendments, but shall
not be responsible for the completeness and accuracy of the information
concerning the other persons making such filings, except to the extent
that it knows or has reason to believe that such information is
inaccurate.
Dated: October 14, 1997 CAMERON CAPITAL LTD.
By: /s/ Nic Snelling
---------------------------------------
Name: Nic Snelling
Title: Chief Financial Officer
WOOD GUNDY (LONDON) LIMITED
By: /s/ Roger Bartlett
---------------------------------------
Name: Roger Bartlett
Title: Associate
