<PAGE> 1
EXECUTION COPY
UTI ENERGY CORP.
156,000 Shares1
Common Stock
UNDERWRITING AGREEMENT
December 12, 2000
Raymond James & Associates, Inc.
880 Carillon Parkway
St. Petersburg, Florida 33716
Dear Sirs:
The securityholders of UTI Energy Corp., a Delaware
corporation (the "Company") set forth in Schedule 1 hereto (the "Selling
Securityholders") and the Company hereby confirm their agreement with Raymond
James & Associates, Inc. (the "Underwriter") as set forth below:
1. Options. Subject to the terms and conditions herein contained, the
Selling Securityholders propose to sell to the Underwriter, severally and not
jointly, as set forth in Schedule 1 hereto, 156,000 options (the "Options"),
each Option being exercisable to purchase one share of Common Stock. The shares
of Common Stock issuable upon exercise of the Options are referred to herein as
the "Option Shares."
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the Underwriter that:
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act"). A
registration statement on such Form (File No. 333-42576) with respect
to the Options and the Option Shares, including a prospectus subject to
completion, has been filed by the Company with the Securities and
Exchange Commission (the "Commission") under the Act, and two
amendments to such registration statement have been so filed and such
registration statement, as amended, has
--------------------------------
(1) Represents options to purchase up to 156,000 shares of Common Stock which,
upon exercise, would result in the issuance of 156,000 shares of Common
Stock.
<PAGE> 2
been declared effective by the Commission. After the execution of this
Agreement, the Company will file with the Commission a prospectus in
the form most recently included in an amendment to such registration
statement (or, if no such amendment shall have been filed, in such
registration statement), with such changes or insertions as are
required by Rule 430A under the Act or permitted by Rule 424(b) under
the Act. As used in this Agreement, the term "Registration Statement"
means the registration statement initially filed relating to the
Options and the Option Shares, as amended at the time when it was
declared effective and as thereafter amended by any post-effective
amendment, including (A) all financial statements, exhibits and
schedules thereto, (B) all documents incorporated by reference therein
filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and (C) any information included in the Prospectus (as
hereinafter defined); the term "Preliminary Prospectus" means each
prospectus subject to completion filed with such registration statement
or any amendment thereto (including the prospectus subject to
completion, if any, included in the Registration Statement or any
amendment thereto at the time it was or is declared effective),
including all documents incorporated by reference therein filed under
the Exchange Act, and the term "Prospectus" means the prospectus first
filed with the Commission pursuant to Rule 424(b) under the Act,
including all documents incorporated by reference therein filed under
the Exchange Act. Any reference in this Agreement to an "amendment or
supplement" to any Preliminary Prospectus, or the Prospectus or an
"amendment" to any registration statement (including the Registration
Statement) shall be deemed to include any document incorporated by
reference therein that is filed with the Commission under the Exchange
Act after the date of such Preliminary Prospectus, Prospectus or
registration statement, as the case may be.
(b) The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus and no proceeding for
that purpose has been instituted or threatened by the Commission or the
securities authority of any state or jurisdiction. When any Preliminary
Prospectus and any amendment or supplement thereto was filed with the
Commission, it (i) contained all statements required to be stated
therein in accordance with, and complied in all material respects with
the requirements of, the Act, the Exchange Act and the respective rules
and regulations of the Commission thereunder, and (ii) did not include
any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. When the
Registration Statement or any amendment thereto was or is declared
effective, it (i) contained or will contain all statements required to
be stated therein in accordance with, and complied or will comply in
all material respects with the requirements of, the Act, the Exchange
Act and the respective rules and regulations of the Commission
thereunder and (ii) did not or will not include any untrue statement of
a material fact or omit to state any material fact necessary to make
the statements therein not misleading. When the Prospectus or any
amendment or supplement to the Prospectus is filed with the Commission
pursuant to Rule 424(b) (or, if the Prospectus or part thereof or such
amendment or supplement is not required to be so filed, when the
Registration Statement or the amendment thereto containing such
amendment or supplement to the Prospectus was or is declared
effective), on the date when the Prospectus is otherwise amended or
supplemented and on the Closing Date (hereinafter defined), the
Prospectus as amended or supplemented at
3
<PAGE> 3
any such time, (i) contained or will contain all statements required to
be stated therein in accordance with, and complied or will comply in
all material respects with the requirements of, the Act, the Exchange
Act and the respective rules and regulations of the Commission
thereunder and (ii) did not or will not include any untrue statement of
a material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading. In addition, no contract or other
document is required to be filed as an exhibit to the Registration
Statement that is not so filed as required. The foregoing provisions of
this Section 2(b) do not apply to statements or omissions made in any
Preliminary Prospectus or any amendment or supplement thereto, the
Registration Statement or any amendment thereto or the Prospectus or
any amendment or supplement thereto in reliance upon and in conformity
with written information furnished to the Company by or on behalf of
the Underwriter or the Selling Securityholders specifically for use
therein.
(c) The Company and all corporations, partnerships and joint
ventures (the "Subsidiaries") in which the Company has a direct or
indirect majority equity interest and which would be required to be
listed on Exhibit 21 to an Annual Report on Form 10-K of the Company if
such report were to be filed with the Commission at the time of the
execution and delivery of this Agreement have been duly organized and
are validly existing as corporations in good standing under the laws of
their respective jurisdictions of incorporation and are duly qualified
to transact business as foreign corporations and are in good standing
under the laws of all other jurisdictions where the ownership or
leasing of their respective properties or the conduct of their
respective businesses requires such qualification, except where the
failure to do so or qualify or be in good standing would not have a
material adverse effect on the business, financial condition or results
of operations of the Company and the Subsidiaries, taken as a whole (a
"Material Adverse Effect").
(d) The Company has an authorized, issued and outstanding
capitalization as set forth in the Prospectus or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus. All of the
issued shares of capital stock of the Company have been duly authorized
and validly issued and are fully paid and nonassessable. The Option
Shares have been duly and validly authorized and reserved for issuance,
and on the Closing Date (as defined herein) the Option Shares will be
issued and delivered in accordance with the provisions of this
Agreement and will be validly issued, fully paid and nonassessable. No
holders of outstanding shares of capital stock of the Company are
entitled as such to any preemptive or other rights to subscribe for any
of the Options or Option Shares, and no holder of securities of the
Company has any right which has not been fully exercised or waived to
require the Company to register the offer or sale of any securities
owned by such holder under the Act in the public offering contemplated
by this Agreement.
(e) Each of the Amended and Restated Option Agreements,
effective as of December 19, 1995, between the Company and the
respective Selling Securityholders party thereto (each, an "Option
Agreement") has been duly authorized, executed and delivered by the
Company, and is the legal, valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms. The
Options have been duly authorized, issued and
4
<PAGE> 4
delivered by the Company, and are legal, valid and binding obligations
of the Company, enforceable against the Company in accordance with
their terms and the terms of the Option Agreements. The Company
represents, acknowledges and agrees that the Selling Securityholders
may assign the Options and their rights under the Option Agreements to
the Underwriter.
(f) The issued shares of capital stock of each of the
Subsidiaries have been duly authorized and validly issued, are fully
paid and nonassessable and except as pledged as security under the Loan
and Security Agreement, dated November 22, 1999 (the "Credit
Agreement"), by and among the Company, the Subsidiaries, The CIT
Group/Business Credit, Inc. and the other lenders named therein, such
shares are owned of record and beneficially by the Company, or another
Subsidiary, free and clear of any security interests, liens,
encumbrances, equities or claims.
(g) None of the Subsidiaries, other than UTI Drilling, LP,
Universal Well Services, Inc., International Petroleum Service,
Company, Norton Drilling, L.P., UTICO, Inc., UTI Management Services,
L.P. and Phelps Drilling Co., is a "significant subsidiary" as such
term is defined in Rule 405 under the Act.
(h) The Option Shares have been approved for listing on the
American Stock Exchange (the "AMEX"), subject to official notice of
issuance.
(i) Except as described or specifically referred to in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and except for options granted under the
Company's employee stock option, stock bonus or other stock plans or
arrangements in effect as of the date hereof and described or
incorporated by reference in the Prospectus (the "Company Stock
Plans"), there are not outstanding (A) securities or obligations of the
Company or any of its subsidiaries convertible into or exchangeable for
any capital stock of the Company or any Subsidiary, (B) warrants,
rights or options to subscribe for or purchase from the Company or any
Subsidiary any such capital stock or any such convertible or
exchangeable securities or obligations, or (C) obligations of the
Company or any Subsidiary to issue any shares of capital stock, any
such convertible or exchangeable securities or obligations, or any such
warrants, rights or options.
(j) The historical consolidated financial statements and
schedules of the Company and its consolidated subsidiaries included in
the Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus) fairly
present the financial position of the Company and its consolidated
subsidiaries and the results of operations and the cash flows of the
Company and its consolidated subsidiaries at the respective dates and
for the respective periods to which they apply. Such financial
statements and schedules have been prepared in accordance with
generally accepted accounting principles consistently applied
throughout the periods involved (except as otherwise noted therein). No
other financial statements or schedules are required to be included in
the Registration Statement.
5
<PAGE> 5
(k) To the best of the Company's knowledge after due inquiry,
Ernst & Young, LLP, who have certified certain financial statements of
the Company and its consolidated subsidiaries and delivered their
reports with respect to the audited consolidated financial statements
and schedules included in the Registration Statement and the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus), are independent public accountants within the meaning of
the Act, the Exchange Act and the related published rules and
regulations thereunder.
(l) The Company has full corporate power to enter into this
Agreement and to carry out all of the terms and provisions hereof to be
carried out by it. The execution and delivery of this Agreement have
been duly authorized by the Company, and this Agreement has been duly
executed and delivered by the Company and is the valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms, except as rights to indemnity and contribution may be
limited under applicable law and except as limited by bankruptcy,
insolvency or other laws of general application relating to or
affecting creditors' rights generally and general principles of equity
(regardless of whether considered in a proceeding in equity or at law).
(m) The compliance by the Company with the provisions of this
Agreement and the consummation of the other transactions herein
contemplated, including without limitation the assignment by the
Selling Securityholders to the Underwriter of their Options and their
rights under the Option Agreements, do not (i) require the consent,
approval, authorization, registration or qualification of or with any
governmental authority, except such as have been obtained, such as may
be required under state securities or blue sky laws and such as may be
required (and shall be obtained as provided in this Agreement) under
the Act, or (ii) conflict with or result in a breach or violation of
any of the terms and provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, lease or other agreement or
instrument to which the Company or any of its Subsidiaries is a party
or by which the Company or any of its Subsidiaries or any of their
respective properties are bound, or the charter documents or by-laws of
the Company or any of its Subsidiaries, or any statute or any judgment,
decree, order, rule or regulation of any court or other governmental
authority or any arbitrator applicable to the Company or any of its
Subsidiaries except for such conflicts, defaults, violations, creations
or impositions that would not affect the consummation of the Agreement,
the exercise of the Options or the issuance of the Option Shares or
have a Material Adverse Effect.
(n) Subsequent to the respective dates as of which information
is given in the Registration Statement or the Prospectus or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus,
neither the Company nor any of its Subsidiaries has sustained any loss
that is material to the Company and its Subsidiaries taken as a whole
or interference with their respective businesses or properties from
fire, flood, hurricane, accident or other calamity, whether or not
covered by insurance, or from any labor dispute or any legal or
governmental proceeding and there has not been any material adverse
change, or any development involving a prospective material adverse
change, or in the condition (financial or otherwise), management,
business prospects, net worth, or results of operations of the Company
and its Subsidiaries taken as a whole, except in each
6
<PAGE> 6
case as described in or contemplated by the Prospectus or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus.
(o) The Company has not, directly or indirectly, (i) taken any
action designed to cause or to result in, or that has constituted or
which might reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Options or Option Shares or (ii) since the
filing of the Registration Statement (A) sold, bid for, purchased, or
paid anyone any compensation for soliciting purchases of, the Options
or Option Shares or (B) paid or agreed to pay to any person any
compensation for soliciting another to purchase any other securities of
the Company (except for the sale of the Options by the Selling
Securityholders and the issuance of the Option Shares under this
Agreement and except in connection with acquisitions by the Company or
its subsidiaries of assets or businesses in the oilfield services
industry).
(p) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus): (1) the Company and its subsidiaries, prior to the Closing
Date, have not entered into any transaction not in the ordinary course
of business that is material to the Company and its subsidiaries taken
as a whole; (2) the Company has not purchased any of its outstanding
capital stock, nor declared, paid or otherwise made any dividend or
distribution of any kind on its capital stock; and (3) there has not
been any material change in the capital stock, short-term debt or
long-term debt of the Company and its consolidated subsidiaries or any
default under the terms of any class of capital stock of the Company or
any outstanding debt obligations, except in each case as described in
or contemplated by the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus).
(q) The Company is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended (the "1940
Act"), and is not subject to regulation as an investment company under
the 1940 Act. This transaction will not cause the Company to become an
investment company subject to registration under the 1940 Act.
(r) The Company has not distributed and, prior to the later of
(i) the Closing Date and (ii) the completion of the distribution of the
Option Shares, will not distribute any offering material in connection
with the offering and sale of the Options and Option Shares other than
the Registration Statement or any amendment thereto, any Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto, or
other materials, if any, permitted by the Act.
(s) Each certificate signed by any officer of the Company and
delivered to the Underwriters pursuant to this Agreement or in
connection with the payment of the purchase price and delivery of the
certificates for the Option Shares shall be deemed to be a
representation and warranty by the Company to the Underwriter as to the
matters covered thereby.
7
<PAGE> 7
3. Representations and Warranties of the Selling Securityholders. Each
Selling Securityholder, as to itself or himself only, represents and warrants
to, and agrees with, the Underwriter that:
(a) Such Selling Securityholder has full legal right, power
and authority (corporate or other) to enter into this Agreement and to
sell, assign, transfer and deliver to the Underwriter the Options to be
sold by such Selling Securityholder hereunder in accordance with the
terms of this Agreement; the execution and delivery of this Agreement
have been duly authorized and approved by all necessary corporate or
other action of such Selling Securityholder; and this Agreement has
been duly executed and delivered by such Selling Securityholder and is
the valid and binding agreement of such Selling Securityholder,
enforceable against such Selling Securityholder in accordance with its
terms.
(b) Such Selling Securityholder has good and valid title to
the Options to be sold by such Selling Securityholder hereunder, and
such Options are owned of record and beneficially by such
Securityholder free and clear of any security interests, liens,
encumbrances, equities or claims. Upon sale and delivery of, and
payment for, the Options, as provided herein, the Underwriter will
receive good and valid title to such Options and, upon exercise of the
Options in accordance with their terms, the Option Shares free and
clear of any security interests, liens, encumbrances, equities or
claims. The exercise price of the Options is $0.95 per share of Common
Stock. All of the Options held by such Selling Securityholder are
assignable and transferable to and exercisable by the Underwriter
without restriction in accordance with the respective Option
Agreements.
(c) In the case of Remy Investors and Consultants,
Incorporated, the Option Agreement relating to the Options to be sold
by such Selling Securityholder and the assignment to the Underwriter of
such Selling Securityholder's Options and its rights under such Option
Agreement have been duly authorized, executed and delivered by such
Selling Securityholder, and are the legal, valid and binding agreements
of such Selling Securityholder, enforceable against such Selling
Securityholder in accordance with their terms.
(d) Such Selling Securityholder has not, directly or
indirectly, (i) taken any action designed to cause or result in, or
that has constituted or which might reasonably be expected to
constitute, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Options
or Option Shares or (ii) since the filing of the Registration Statement
(A) sold, bid for, purchased, or paid anyone any compensation for
soliciting purchases of, the Options or Option Shares or (B) paid or
agreed to pay to any person any compensation for soliciting another to
purchase any other securities of the Company (except for the sale of
Options by the Selling Securityholders and the issuance of the Option
Shares under this Agreement).
(e) To the extent that any statements or omissions are made in
the Registration Statement, any Preliminary Prospectus, the Prospectus
or any amendment or supplement thereto in reliance upon and in
conformity with written information furnished
8
<PAGE> 8
to the Company by such Selling Securityholder specifically for use
therein, such Preliminary Prospectus did, and the Registration
Statement and the Prospectus and any amendments or supplements thereto,
when they become effective or are filed with the Commission, as the
case may be, will, with respect to such information, conform in all
material respects to the requirements of the Act, the Exchange Act and
the respective rules and regulations of the Commission thereunder and
will, with respect to such information, not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they are made,
not misleading. Such Selling Securityholder has reviewed the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus) and the Registration Statement, and the information
regarding such Selling Securityholder set forth therein under the
caption "Selling Securityholders" is complete and accurate.
(f) Such Selling Securityholder has no actual knowledge of any
material adverse information specifically concerning the Company that
is not set forth in the Registration Statement or the Prospectus (or,
if the Prospectus is not in existence, the most recent Preliminary
Prospectus).
(g) The sale of the Options to the Underwriter by such Selling
Securityholder pursuant to this Agreement, the compliance by such
Selling Securityholder with the other provisions of this Agreement and
the consummation of the other transactions herein contemplated do not
(i) require the consent, approval, authorization, registration or
qualification of or with any governmental authority, except such as
have been obtained, such as may be required under state securities or
blue sky laws and, if the registration statement filed with respect to
the Options (as amended) is not effective under the Act as of the time
of execution hereof, such as may be required (and shall be obtained as
provided in this Agreement) under the Act and the Exchange Act, or (ii)
for any Selling Securityholder that is not an individual, conflict with
or result in a breach or violation of any of the terms and provisions
of, or constitute a default under any indenture, mortgage, deed of
trust, lease or other agreement or instrument to which such Selling
Securityholder or any of its subsidiaries is a party or by which such
Selling Securityholder or any of its subsidiaries or any of such
Selling Securityholder's properties are bound, or the charter
documents, by-laws, partnership agreement or other governing document
of such Selling Securityholder or any of its subsidiaries or any
statute or any judgment, decree, order, rule or regulation of any court
or other governmental authority or any arbitrator applicable to such
Selling Securityholder or any of its subsidiaries.
(h) The Selling Securityholders have not distributed and,
prior to the later of (i) the Closing Date and (ii) the completion of
the distribution of the Options and the Option Shares, will not
distribute any offering material in connection with the offering and
sale of the Options and the Option Shares other than the Registration
Statement or any amendment thereto, any Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto, or other materials,
if any, permitted by the Act.
(i) Such Selling Securityholder is not prompted to sell any
Options by any information concerning the Company that is not set forth
in the Registration Statement.
9
<PAGE> 9
4. Purchase, Sale and Delivery of the Options and Option Shares. On the
basis of the representations, warranties, agreements and covenants herein
contained and subject to the terms and conditions herein set forth, each of the
Selling Securityholders, severally and not jointly, agrees to sell, to the
Underwriter, and the Underwriter agrees to purchase from each of the Selling
Securityholders, at a purchase price of $ 25.52 per Option less the exercise
price with respect to each option, the Options to be sold by such Selling
Securityholder. The exercise price with respect to each Option will be paid by
the Underwriter to the Company. The Options that the Underwriter has agreed to
purchase hereunder shall be delivered by the assignment to the Underwriter by
the Selling Securityholders of their Options and their rights under the Option
Agreements against (1) payment by the Underwriter of the purchase price for the
Options by Wired Funds to the account designated by each of the Selling
Securityholders and (2) payment by the Underwriter of the exercise price of the
Options to the Company by Wired Funds to the account designated by the Company.
The Underwriter agrees to exercise the Options effective as of the Closing Date
(as defined below), and the Option Shares shall be delivered to the Underwriter
electronically through Deposit Withdrawal at Custodian (DWAC) via the DTC system
for its account. Such delivery of and payment for the Options and Option Shares
shall be made at the offices of Andrews & Kurth L.L.P., 600 Travis Street, Suite
4200, Houston, Texas 77002, at 8:30 a.m. Houston, Texas time, on December 15,
2000, or at such other place, time or date as the Underwriter, the Selling
Securityholders and the Company may agree upon or as the Underwriter may
determine, such time and date of delivery against payment being herein referred
to as the "Closing Date."
5. Offering by the Underwriter. Upon authorization by the Selling
Securityholders and the Company of the release of the Options, the Underwriter
proposes to exercise the Options and offer the Option Shares for sale to the
public upon the terms set forth in the Prospectus.
6. Covenants of the Company. The Company covenants and agrees with the
Underwriter that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the time of execution of
this Agreement, and any amendments thereto to become effective as
promptly as possible. If required, the Company will file the Prospectus
and any amendment or supplement thereto with the Commission in the
manner and within the time period required by Rule 424(b) under the
Act. During any time when a prospectus relating to the Options or
Option Shares is required to be delivered under the Act, the Company
(i) will comply with all requirements imposed upon it by the Act and
the Exchange Act and the respective rules and regulations of the
Commission thereunder to the extent necessary to permit the continuance
of sales of or dealings in the Options or Option Shares in accordance
with the provisions hereof and of the Prospectus, as then amended or
supplemented, and (ii) will not file with the Commission the Prospectus
or the amendment referred to in the third sentence of Section 2(a)
hereof, any amendment or supplement to such prospectus or any amendment
to the Registration Statement or any Rule 462(b) Registration Statement
of which the Underwriter shall not previously have been advised and
furnished with a copy for a reasonable period of time prior to the
proposed filing and as to which filing the Underwriter shall not have
given its consent; provided, that the foregoing provision of this
clause (ii) does not prohibit the Company from making filings with the
Commission
10
<PAGE> 10
of statements and reports that it reasonably believes are required to
be made under the Exchange Act. The Company will prepare and file with
the Commission, in accordance with the rules and regulations of the
Commission, promptly upon request by the Underwriter or counsel for the
Underwriter, any amendments to the Registration Statement or amendments
or supplements to the Prospectus that may be necessary or advisable in
connection with the distribution of the Option Shares by the
Underwriter, and will use its best efforts to cause any such amendment
to the Registration Statement to be declared effective by the
Commission as promptly as possible. The Company will advise the
Underwriter, promptly after receiving notice thereof, of the time when
the Registration Statement or any amendment thereto has been filed or
declared effective or the Prospectus or any amendment or supplement
thereto has been filed and will provide evidence satisfactory to the
Underwriter of each such filing or effectiveness.
(b) The Company will advise the Underwriter, promptly after
receiving notice or obtaining knowledge thereof, of (i) the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration Statement or any
post-effective amendment thereto or any order directed at any document
incorporated by reference in the Registration Statement or the
Prospectus or any amendment or supplement thereto or any order
preventing or suspending the use of any Preliminary Prospectus, or the
Prospectus or any amendment or supplement thereto, (ii) the suspension
of the qualification of the Option Shares for offering or sale in any
jurisdiction, (iii) the institution, threatening or contemplation of
any proceeding for any such purpose or (iv) any request made by the
Commission for amending the Registration Statement or any Rule 462(b)
Registration Statement, for amending or supplementing any Preliminary
Prospectus or the Prospectus or for additional information. The Company
will use its best efforts to prevent the issuance of any such stop
order and, if any such stop order is issued, to obtain the withdrawal
thereof as promptly as possible.
(c) If, at any time prior to the final date when a prospectus
relating to the Options or Option Shares is required to be delivered
under the Act, any event occurs as a result of which the Prospectus as
then amended or supplemented, would include any untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if for any other reason it is
necessary at any time to amend or supplement, the Prospectus to comply
with the Act, the Exchange Act or the respective rules or regulations
of the Commission thereunder, the Company will promptly notify the
Underwriter thereof and, subject to Section 6(a) hereof, will prepare
and file with the Commission, at the Company's expense, an amendment to
the Registration Statement or an amendment or supplement to the
Prospectus that corrects such statement or omission or effects such
compliance.
(d) For a period of 30 days after the date of the Prospectus
first filed pursuant to Rule 424(b) under the Act, without the prior
written consent of the Underwriter, the Company will not, directly or
indirectly, issue, sell, offer or contract to sell or otherwise dispose
of or transfer any shares of Common Stock, rights to purchase Common
Stock or securities convertible into or exchangeable or exercisable for
shares of Common Stock
11
<PAGE> 11
(collectively, "Company Securities") or any rights to purchase Company
Securities, or file any registration statement under the Act with
respect to any of the foregoing, except to the Underwriters pursuant to
this Agreement, except for grants of options pursuant to the Company
Stock Plans, except for issuances of shares of Common Stock upon the
exercise of options outstanding as of the date hereof under such
Company Stock Plans and upon the exercise of warrants referred to in
the Prospectus and except for the filing by the Company of one or more
registration statements relating to the sale by persons other than the
Company of no more than 75,000 shares of Common Stock.
(e) The Company will, without charge, provide (i) to the
Underwriter and to counsel for the Underwriter a conformed copy of the
registration statement originally filed with respect to the Options and
Option Shares and each amendment thereto (in each case including
exhibits thereto) or any Rule 462(b) Registration Statement and (ii) as
soon after the execution and delivery of this Agreement as is
practicable and thereafter from time to time for such period as in the
reasonable opinion of counsel for the Underwriter a prospectus relating
to the Option Shares is required by the Act to be delivered in
connection with sales by the Underwriter or a dealer, as many copies
the Prospectus and any amendment or supplement thereto as the
Underwriter may reasonably request.
(f) The Company, as soon as practicable when required, will
make generally available to its securityholders and to the Underwriter
a consolidated earnings statement of the Company and its Subsidiaries
that satisfies the provisions of Section 11(a) of the Act and Rule 158
thereunder.
(g) The Company will not at any time, directly or indirectly,
take any action designed, or which might reasonably be expected to
cause or result in, or which will constitute, stabilization or
manipulation of the price of the shares of Common Stock to facilitate
the sale or resale of any of the Option Shares.
(h) The Company will use its best efforts to cause its Common
Stock to continue to be listed on the AMEX, or in lieu thereof, on the
New York Stock Exchange or the NASDAQ National Market System.
7. Covenants of Selling Securityholders. Each Selling
Securityholder covenants and agrees with the Underwriter that:
(a) Such Selling Securityholder will not, directly or
indirectly, (i) take any action designed to cause or result in, or that
has constituted or which might reasonably be expected to constitute,
the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Options or the Option
Shares or (ii) sell, bid for, purchase, or pay anyone any compensation
for soliciting purchases of, the Options or the Option Shares (except
for the sale of Options by the Selling Securityholders and the issuance
of the Option Shares under this Agreement).
(b) Such Selling Securityholder agrees to deliver to you
prior to or at the Closing Date a properly completed and executed
United States Treasury Department
12
<PAGE> 12
Form W-9 (or other applicable form or statement specified by Treasury
Department regulation in lieu thereof).
(c) On the Closing Date, all stock transfer and other taxes
(other than income taxes), if any, that are required to be paid in
connection with the sale and transfer of the Options to be sold by such
Selling Securityholder to the Underwriters hereunder will have been
fully paid for by such Selling Securityholder and all laws imposing
such taxes will have been fully complied with.
8. Expenses. The Company and the Selling Securityholders, in such
proportions as they have or will agree, will pay, and hold the Underwriter
harmless from, the following costs and expenses incident to the performance of
its obligations under this Agreement, whether or not the transactions
contemplated herein are consummated or this Agreement is terminated pursuant to
Section 12 hereof: (i) the printing or other production of documents with
respect to the transactions, including any costs of printing the registration
statement originally filed with respect to the Options or Option Shares and any
amendment thereto, any Rule 462(b) Registration Statement, any Preliminary
Prospectus, the Prospectus and any amendment or supplement thereto, this
Agreement and any blue sky memoranda, (ii) all arrangements relating to the
delivery to the Underwriter of copies of the foregoing documents, (iii) the fees
and disbursements of the counsel, accountants and any other experts or advisors
retained by the Company and the Selling Securityholders, (iv) preparation,
issuance and delivery to the Underwriter of any certificates evidencing the
Options or Option Shares, including transfer agent's and registrar's fees, (v)
the qualification of the Options or Option Shares under state securities and
blue sky laws, including filing fees and reasonable fees and disbursements of
counsel for the Underwriter relating thereto, (vi) the filing fees of the
Commission (and the National Association of Securities Dealers, Inc.) relating
to the Options or Option Shares, and (vii) the listing of the Option Shares on
the American Stock Exchange. If the sale of the Options provided for herein is
not consummated because any condition to the obligations of the Underwriter set
forth in Section 9 hereof is not satisfied, because this Agreement is terminated
pursuant to Section 12 hereof or because of any failure, refusal or inability on
the part of the Company to perform all obligations and satisfy all conditions on
its part to be performed or satisfied hereunder other than by reason of a
default by the Underwriter, the Company will reimburse the Underwriter upon
demand for all out-of-pocket expenses (including fees and disbursements of
counsel) that shall have been incurred by it in connection with the proposed
purchase and sale of the Options. The Company shall not in any event be liable
to the Underwriter for the loss of anticipated profits from the transactions
covered by this Agreement.
9. Conditions of the Underwriter's Obligations. The obligations of the
Underwriter to purchase and pay for the Options shall be subject, in the
Underwriter's sole discretion, to the accuracy of the representations and
warranties of the Company and each Selling Securityholder contained herein as of
the date hereof and as of the Closing Date, as if made on and as of the Closing
Date, to the accuracy of the statements of the Company's and each Selling
Securityholder's officers made pursuant to the provisions hereof, to the
performance by the Company and each Selling Securityholder of its covenants and
agreements hereunder and to the following additional conditions:
13
<PAGE> 13
(a) The Registration Statement shall have become effective
prior to the date hereof and all filings required by Rules 424(b), 430A
and 462 under the Act shall have been timely made; no stop order
suspending the effectiveness of the Registration Statement or any
post-effective amendment thereto and no order directed at any document
incorporated by reference in the Registration Statement or the
Prospectus or any amendment or supplement thereto shall have been
issued and no proceedings for that purpose shall have been instituted
or threatened or, to the knowledge of the Company or the Underwriter,
shall be contemplated by the Commission; and the Company shall have
complied with any request of the Commission for additional information
(to be included in the Registration Statement, or the Prospectus or
otherwise).
(b) The Underwriter shall have received an opinion, dated the
Closing Date, of Fulbright & Jaworski, L.L.P., counsel for the Company,
to the effect that:
(i) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the state of Delaware;
(ii) the Option Shares have been duly authorized by
all necessary corporate action of the Company and, when
delivered to and paid for by the Underwriter pursuant to this
Agreement and the Option Agreement, will be validly issued,
fully paid and nonassessable; no holders of outstanding shares
of capital stock of the Company are entitled as such to any
preemptive or other rights to subscribe for any of the Options
under the Delaware General Corporation Law or the Company's
Certificate of Incorporation or by-laws;
(iii) each of the Option Agreements has been duly
authorized, executed and delivered by the Company, and is the
legal, valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms; the Options
have been duly authorized, issued and delivered by the
Company, and are legal, valid and binding obligations of the
Company, enforceable against the Company in accordance with
the terms of the Option Agreements; and the Options and the
rights of the Selling Securityholders under the Option
Agreements are assignable by the Selling Securityholders to
the Underwriter;
(iv) the Options conform in all material respects to
the description thereof set forth under the heading "Options"
in the Prospectus;
(v) the execution and delivery of this Agreement have
been duly authorized by all necessary corporate action of the
Company and this Agreement has been duly executed and
delivered by the Company;
(vi) the compliance by the Company with the
provisions of this Agreement and the consummation of the other
transactions herein contemplated do not conflict with or
result in a breach or violation of any of the terms and
provisions of the charter documents or by-laws of the Company
or the Credit Agreement; and
14
<PAGE> 14
(vii) the Registration Statement and the Prospectus
(excluding the financial statements and other financial or
statistical information contained or incorporated by reference
therein and any information furnished by the Underwriter or
the Selling Securityholders, as to which such counsel need
express no opinion) comply on their face as to form in all
material respects with the applicable requirements of the Act
and the respective rules and regulations of the Commission
thereunder.
Such counsel shall also state that it has participated in conferences with
officers and other representatives of the Company, the Selling Securityholders
and representatives of the independent public accountants of the Company, at
which conferences the contents of the Registration Statement and the Prospectus
were discussed. Although such counsel need not pass upon and does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus and need not make any
representation that it has independently verified the accuracy, completeness or
fairness of such statements, such counsel shall state that on the basis of the
foregoing and the information disclosed to it (i) no facts came to its attention
that lead it to believe that the Registration Statement, as of the time it was
declared effective under the Act, contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading (it being
understood that such counsel need not express any view with respect to the
financial statements, including the notes and schedules thereto and the
auditor's report thereon, or any other information of a financial, numerical,
statistical or accounting nature set forth or referred to in the Registration
Statement or any document incorporated therein by reference or any exhibits
thereto), and (ii) no facts have come to such counsel's attention that lead it
to believe that the Prospectus, a of the time it was filed with the Commission,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (it being understood that such counsel need not express any view with
respect to the financial statements, including the notes and schedules thereto
and the auditor's report thereon, or any other information or a financial,
statistical or accounting nature set forth or referred to in the Prospectus or
any document incorporated therein by reference).
In rendering any such opinion, such counsel may rely, as to
matters of fact, to the extent such counsel deems proper, on certificates of
responsible officers of the Company and public officials. References to the
Registration Statement and the Prospectus in this Section 9(b) shall include any
amendment or supplement thereto at the date of such opinion.
(c) The Selling Securityholders shall have furnished to the
Underwriter the opinion of Fulbright & Jaworski, L.L.P., counsel for
the Selling Securityholders, dated the Closing Date, to the effect
that:
(i) The assignments dated the date hereof executed by
each of the Selling Securityholders are effective to transfer
their rights under their respective Option Agreements and
Options to the Underwriter-Assuming the Options are
"securities" (within the meaning of Section 8-102 of the
Uniform Commercial Code in effect in the State of New York
(the "NYUCC")) then upon delivery (as defined in Section 8-301
of the NYUCC) of the Options to the Underwriter, and payment
for the Options, by the Underwriter, as provided herein, the
Underwriter shall acquire the Selling Securityholders'
interest in the Options free of any adverse claims (as that
term is defined under the NYUCC), assuming that the
Underwriter has
15
<PAGE> 15
acquired the Options in good faith and without notice of any
adverse claim (within the meaning of Section 8-105(a) of the
NYUCC);
(ii) In the case of Remy Investors and Consultants,
Incorporated, the execution and delivery of this Agreement
have been duly authorized by all necessary corporate action of
such Selling Securityholder and this Agreement has been duly
executed and delivered by such Selling Securityholder; and the
Option Agreement relating to such Selling Securityholder and
the assignment to the Underwriter of its Options and its
rights under such Option Agreement have been duly authorized,
executed and delivered by such Selling Securityholder, and are
the legal, valid and binding agreement of such Selling
Securityholder, enforceable against such Selling
Securityholder in accordance with its terms; and
(iii) The sale of the Options to the Underwriter by
such Selling Securityholder pursuant to this Agreement, the
compliance by such Selling Securityholder with the other
provisions of this Agreement and the consummation of the other
transactions herein contemplated do not, for any Selling
Securityholder that is a corporation or a partnership,
conflict with or result in a breach or violation of any of the
terms and provisions of the charter documents, by-laws,
partnership agreement or other governing documents of such
Selling Securityholder.
In rendering such opinion, such counsel may rely, as to
matters of fact, to the extent such counsel deems proper, on certificates of
responsible officers of the Company and public officials. References to the
Registration Statement and the Prospectus in this Section 9(c) shall include any
amendment or supplement thereto at the date of such opinion.
(d) The Underwriter shall have received an opinion, dated the
Closing Date, of Andrews & Kurth L.L.P., 600 Travis, Suite 4200,
Houston, Texas 77002, counsel for the Underwriter, with respect to the
sale of the Options and the Option Shares and such other related
matters as the Underwriter may reasonably require, and the Company
shall have furnished to such counsel such documents as they may
reasonably request for the purpose of enabling them to pass upon such
matters.
(e) The Underwriter shall have received from Ernst & Young,
LLP a letter or letters dated, respectively, the date hereof and the
Closing Date, in form and substance satisfactory to the Underwriter, to
the effect that:
(i) they are independent accountants with respect to
the Company and its consolidated subsidiaries within the
meaning of the Act, and the Exchange Act and the applicable
rules and regulations thereunder;
(ii) in their opinion, the audited consolidated
financial statements and schedules examined by them and
included in the Registration Statement and the Prospectus
comply in form in all material respects with the applicable
accounting
16
<PAGE> 16
requirements of the Act, the Exchange Act and the related published
rules and regulations thereunder;
(iii) on the basis of a reading of the latest
available interim unaudited consolidated condensed financial
statements of the Company and its consolidated subsidiaries,
carrying out certain specified procedures (which do not
constitute an examination made in accordance with generally
accepted auditing standards) that would not necessarily reveal
matters of significance with respect to the comments set forth
in this Section 9(e)(iii), a reading of the minute books of
the shareholders, the board of directors and any committees
thereof of the Company and each of its consolidated
subsidiaries, and inquiries of certain officials of the
Company and its consolidated subsidiaries who have
responsibility for financial and accounting matters, nothing
came to their attention that caused them to believe that:
(A) the unaudited condensed consolidated
financial statements of the Company and its
consolidated subsidiaries included or incorporated by
reference in the Registration Statement and the
Prospectus do not comply in form in all material
respects with the applicable accounting requirements
of the Act, the Exchange Act and the related
published rules and regulations thereunder, or are
not in conformity with generally accepted accounting
principles applied on a basis substantially
consistent with that of the audited consolidated
financial statements included in the Registration
Statement and the Prospectus; and
(B) at a specific date not more than five
business days prior to the date of such letter, there
were any changes in the capital stock or long-term
debt of the Company and its consolidated subsidiaries
or any decreases in net current assets or
stockholders' equity of the Company and its
consolidated subsidiaries, in each case compared with
amounts shown on the September 30, 2000, unaudited
condensed consolidated balance sheet incorporated by
reference in the Registration Statement and the
Prospectus; or for the period from October 1, 2000,
to such specified date, there were any decreases, as
compared with the corresponding period in the
preceding year and with a period of corresponding
length ending on September 30, 2000, in net revenues,
net income before income taxes or total or per share
amounts of net income of the Company and its
consolidated subsidiaries, except in all instances
for changes, decreases or increases set forth in such
letter.
In the event that the letter referred to above set forth any
such changes, decreases or increases, it shall be a further condition to the
obligations of the Underwriter that (A) such letter shall be accompanied by a
written explanation of the Company as to the significance thereof, unless the
Underwriter deems such explanation unnecessary, and (B) such changes, decreases
or increases do not, in the sole judgment of the Underwriter, make it
impractical or inadvisable to proceed with the purchase and delivery of the
Options and Option Shares as contemplated by the Registration Statement, as
amended as of the date hereof.
17
<PAGE> 17
References to the Registration Statement and the Prospectus in
this Section 9(e) with respect to the letter referred to above shall include any
amendment or supplement thereto at the date of such letter.
(f) The Underwriter shall have received a certificate, dated
the Closing Date, of the principal executive officer and the principal
financial or accounting officer of the Company to the effect that:
(i) the representations and warranties of the Company
in this Agreement are true and correct as if made on and as of
the Closing Date; the Registration Statement, as amended as of
the Closing Date, does not include any untrue statement of a
material fact or omit to state any material fact necessary to
make the statements therein not misleading, and the
Prospectus, as amended or supplemented as of the Closing Date,
does not include any untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; and the Company has
performed all covenants and agreements and satisfied all
conditions on its part to be performed or satisfied at or
prior to the Closing Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement or any post-effective amendment
thereto and no order directed at any document incorporated by
reference in the Registration Statement or the Prospectus or
any amendment or supplement thereto has been issued, and no
proceedings for that purpose have been instituted or
threatened or, to the best of the Company's knowledge, are
contemplated by the Commission; and
(iii) subsequent to the respective dates as of which
information is given in the Registration Statement and the
Prospectus, neither the Company nor any of its Subsidiaries
has sustained any loss that is material to the Company and its
Subsidiaries taken as a whole or interference with their
respective businesses or properties from fire, flood,
hurricane, accident or other calamity, whether or not covered
by insurance, or from any labor dispute or any legal or
governmental proceeding, and there has not been any material
adverse change, or any development involving a prospective
material adverse change, in the condition (financial or
otherwise), management, business prospects, net worth or
results of operations of the Company and its Subsidiaries
taken as a whole, except in each case as described in or
contemplated by the Prospectus.
Such officers' certificate may state that it is being delivered by each
officer on behalf of the Company and no personal liability shall attach
to the individual executing the certificate absent fraudulent
misrepresentation.
(g) The Underwriter shall have received a certificate, dated
the Closing Date, of each Selling Securityholder to the effect that the
representations and warranties of such Selling Securityholder in this
Agreement are true and correct as if made on and as of the Closing
Date.
18
<PAGE> 18
(h) The Underwriter shall have received a written assignment
from each Selling Securityholder to the Underwriter of such Selling
Securityholder's Options and rights under the Option Agreements in a
form satisfactory to the Underwriter.
(i) On or before the Closing Date, the Underwriter and counsel
for the Underwriter shall have received such further certificates,
documents or other information as they may have reasonably requested
from the Company.
All opinions, certificates, letters and documents delivered
pursuant to this Agreement will comply with the provisions hereof only if they
are reasonably satisfactory in all material respects to the Underwriter and
counsel for the Underwriter. The Company shall furnish to the Underwriter such
conformed copies of such opinions, certificates, letters and documents in such
quantities as the Underwriter and counsel for the Underwriter shall reasonably
request.
10. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless the
Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act against any losses, claims, damages or liabilities, joint
or several, to which such Underwriter or such controlling person may
become subject under the Act, the Exchange Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement
or any amendment thereto, any Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto, or
(ii) the omission or alleged omission to state in the
Registration Statement or any amendment thereto, any
Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto, a material fact required to be stated
therein or necessary to make the statements therein not
misleading, or
(iii) any inaccuracy in or breach of the
representations and warranties of the Company contained herein
or any failure of the Company to perform its obligations
hereunder or under law;
and will reimburse, as incurred, the Underwriter and each such
controlling person for any legal or other expenses reasonably incurred
by the Underwriter or such controlling person in connection with
investigating, defending against or appearing as a third-party witness
in connection with any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any such case
to the extent that any such loss, claim, damage or liability arises out
of or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement or any
amendment thereto, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto, in reliance upon and in conformity
with written information
19
<PAGE> 19
furnished to the Company by the Underwriter specifically for use
therein; and provided, further, that the Company will not be liable to
the Underwriter or any person controlling the Underwriter with respect
to any such untrue statement or omission made in any Preliminary
Prospectus that is corrected in the Prospectus (or any amendment or
supplement thereto) if the person asserting any such loss, claim,
damage or liability purchased Option Shares from the Underwriter but
was not sent or given a copy of the Prospectus (as amended or
supplemented), other than the documents incorporated by reference
therein, at or prior to the written confirmation of the sale of such
Option Shares to such person in any case where such delivery of the
Prospectus (as amended or supplemented) is required by the Act, unless
such failure to deliver the Prospectus (as amended or supplemented) was
a result of noncompliance by the Company with Sections 6(c) and 6(a) of
this Agreement. This indemnity agreement will be in addition to any
liability which the Company may otherwise have. The Company will not,
without the prior written consent of the Underwriter, settle or
compromise or consent to the entry of any judgment in any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification may be sought hereunder (whether or not the Underwriter
or any person who controls the Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act is a party to
such claim, action, suit or proceeding), unless such settlement,
compromise or consent includes an unconditional release of the
Underwriter and such controlling persons from all liability arising out
of such claim, action, suit or proceeding. This indemnity agreement
will be in addition to any liability which the Company may otherwise
have.
(b) Each Selling Securityholder, severally and not jointly,
agrees to indemnify and hold harmless the Company, each of its
directors, each of its officers who signs the Registration Statement or
any amendment thereto, the Underwriter and each person who controls the
Company or the Underwriter within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act against any losses, claims, damages
or liabilities, joint or several, to which the Company, any such
director, officer, such Underwriter or any such controlling person may
become subject under the Act, the Exchange Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in the
Registration Statement or any amendment thereto, any Preliminary
Prospectus, the Prospectus or any amendment or supplement thereto, (ii)
the omission or the alleged omission to state therein a material fact
required to be stated in the Registration Statement or any amendment
thereto, any Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto, or necessary to make the statements therein not
misleading or (iii) any inaccuracy in or breach of the representations
and warranties of the Selling Securityholders contained herein or any
failure of the Selling Securityholders to perform their obligations
hereunder or under law, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in
conformity with the written information furnished to the Company by
such Selling Securityholder for use therein. Subject to the limitations
set forth in the immediately preceding sentence, each Selling
Securityholder, severally and not jointly, will reimburse, as incurred,
any legal or other expenses reasonably incurred by the Company, any
such director, officer, such Underwriter or any such controlling person
in connection with investigating or defending
20
<PAGE> 20
any such loss, claim, damage, liability or any action in respect
thereof. This indemnity agreement will be in addition to any liability
which any Selling Securityholder may otherwise have. Each Selling
Securityholder will not, without the prior written consent of the
Underwriter, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or proceeding
in respect of which indemnification may be sought hereunder (whether or
not the Underwriter or any person who controls the Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act
is a party to such claim, action, suit or proceeding), unless such
settlement, compromise or consent includes an unconditional release of
the Underwriter and such controlling persons from all liability arising
out of such claim, action, suit or proceeding. This indemnity agreement
will be in addition to any liability which the Selling Securityholders
may otherwise have.
(c) The Underwriter will indemnify and hold harmless the
Company, each of its directors, each of its officers who signed the
Registration Statement, and each Selling Securityholder and each
person, if any, who controls the Company or such Selling Securityholder
within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act against any losses, claims, damages or liabilities to
which the Company or any such director, officer, Selling
Securityholder, or controlling person may become subject under the Act,
the Exchange Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are
based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement or any amendment
thereto, any Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto, (ii) the omission or the alleged omission to state
therein a material fact required to be stated in the Registration
Statement or any amendment thereto, any Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto, necessary to make
the statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Company by the
Underwriter specifically for use therein; and, subject to the
limitation set forth immediately preceding this clause, will reimburse,
as incurred, any legal or other expenses reasonably incurred by the
Company or any such director, officer, Selling Securityholder, or
controlling person in connection with investigating or defending any
such loss, claim, damage, liability or any action in respect thereof.
This indemnity agreement will be in addition to any liability which
such Underwriter may otherwise have.
(d) Promptly after receipt by an indemnified party under this
Section 10 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 10, notify the
indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve it from any liability
which it may have to any indemnified party otherwise than under this
Section 10 except to the extent (but only to the extent) that failure
to give notice shall prejudice such party's rights. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party
will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly
21
<PAGE> 21
notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party; provided, however, that if the defendants in
any such action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded that
there may be one or more legal defenses available to the indemnified
party and/or other indemnified parties which are different from or
additional to those available to the indemnifying party and would make
the representation of all such parties inappropriate, the indemnifying
party shall not have the right to direct the defense of such action on
behalf of such indemnified party or parties and such indemnified party
or parties shall have the right to select separate counsel to defend
such action on behalf of such indemnified party or parties. After
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof and approval by such
indemnified party of counsel appointed to defend such action, the
indemnifying party will not be liable to such indemnified party under
this Section 10(d) for any legal or other expenses, other than
reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof, unless (i)
the indemnified party shall have employed separate counsel in
accordance with the proviso to the next preceding sentence (it being
understood, however, that in connection with such action the
indemnifying party shall not be liable for the expenses of more than
one separate counsel (in addition to local counsel) in any one action
or separate but substantially similar actions in the same jurisdiction
arising out of the same general allegations or circumstances,
designated by the Underwriter in the case of Section 10(c),
representing the indemnified parties under such Section 10(c) who are
parties to such action or actions) or (ii) the indemnifying party does
not promptly retain counsel satisfactory to the indemnified party or
(iii) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party.
After such notice from the indemnifying party to such indemnified
party, the indemnifying party will not be liable for the costs and
expenses of any settlement of such action effected by such indemnified
party without the consent of the indemnifying party.
(e) No Selling Securityholder shall be liable to the
Underwriter for a breach of this Agreement or indemnification hereunder
for an amount exceeding the amount of cash received by such Selling
Securityholder upon the sale of its Options and Option Shares.
(f) In circumstances in which the indemnity agreement provided
for in the preceding paragraphs of this Section 10 is unavailable or
insufficient, for any reason, to hold harmless an indemnified party in
respect of any losses, claims, damages or liabilities (or actions in
respect thereof), each indemnifying party, in order to provide for just
and equitable contribution, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect (i) the relative benefits
received by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other from the offering of the
Options Shares or (ii) if the allocation provided by the foregoing
clause (i) is not permitted by applicable law, not only such relative
benefits but also the relative fault of the indemnifying party or
parties on the one hand and the indemnified party or parties on the
other in connection with the statements or omissions or alleged
statements or omissions that resulted in such losses, claims,
22
<PAGE> 22
damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received
by the Company and the Selling Securityholders on the one hand and the
Underwriter on the other shall be deemed to be in the same proportion
as the total proceeds from the offering (before deducting expenses)
received by the Company and the Selling Securityholders bear to the
total profits received by the Underwriter. ("Total profits" are defined
as the difference between the total price at which the Underwriter
sells the Option Shares to the public and the total price that the
Underwriter pays to purchase the Options from the Selling
Securityholders plus the exercise price the Underwriter pays to the
Company). The relative fault of the parties shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company,
the Selling Securityholders or the Underwriter, the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission, and any other equitable
considerations appropriate in the circumstances. The Company, the
Selling Securityholders and the Underwriter agree that it would not be
equitable if the amount of such contribution were determined by pro
rata or per capita allocation or by any other method of allocation that
does not take into account the equitable considerations referred to
above in this Section 10(f). Notwithstanding any other provision of
this Section 10, the Underwriter shall not be obligated to make
contributions hereunder in excess of any amount by which the total
price at which the Option Shares underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages
that such Underwriter has otherwise been required to pay in respect of
the same or any substantially similar claim. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this
Section 10(f), each person, if any, who controls the Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act
shall have the same rights to contribution as the Underwriter, and each
director of the Company, each officer of the Company who signed the
Registration Statement and each person, if any, who controls the
Company or any Selling Securityholder within the meaning of Section 15
of the Act or Section 20 of the Exchange Act, shall have the same
rights to contribution as the Company or such Selling Securityholder,
as the case may be.
11. Survival. The respective representations, warranties, agreements,
covenants, indemnities and other statements of the Company, its officers, the
Selling Securityholders and the Underwriter set forth in this Agreement or made
by or on behalf of them, respectively, pursuant to this Agreement shall remain
in full force and effect, regardless of (i) any investigation made by or on
behalf of the Company, any of its officers or directors, any Selling
Securityholder, the Underwriter or any controlling person referred to in Section
10 hereof and (ii) delivery of and payment for the Options and the Option
Shares. The respective agreements, covenants, indemnities and other statements
set forth in Sections 8 and 10 hereof shall remain in full force and effect,
regardless of any termination or cancellation of this Agreement.
12. Termination.
23
<PAGE> 23
(a) This Agreement may be terminated with respect to the
Options in the sole discretion of the Underwriter by notice to the
Selling Securityholders given prior to the Closing Date in the event
that the Company or any Selling Securityholder shall have failed,
refused or been unable to perform all obligations and satisfy all
conditions on its part to be performed or satisfied hereunder at or
prior thereto or, if at or prior to the Closing Date:
(i) the Company or any of its Subsidiaries shall
have, in the sole judgment of the Underwriter, sustained any
material loss or interference with their respective businesses
or properties from fire, flood, hurricane, accident or other
calamity, whether or not covered by insurance, or from any
labor dispute or any legal or governmental proceeding or there
shall have been any material adverse change, or any
development involving a prospective material adverse change
(including without limitation a change in management or
control of the Company), in the condition (financial or
otherwise), business prospects, net worth or results of
operations of the Company and its Subsidiaries, except in each
case as described in or contemplated by the Prospectus
(exclusive of any amendment or supplement thereto);
(ii) trading in the Common Stock shall have been
suspended by the Commission or the American Stock Exchange or
trading in securities generally on the New York or American
Stock Exchange shall have been suspended or minimum or maximum
prices shall have been established on any such exchange;
(iii) a banking moratorium shall have been declared
by New York or United States authorities; or
(iv) there shall have been (A) an outbreak or
escalation of hostilities between the United States and any
foreign power, (B) an outbreak or escalation of any other
insurrection or armed conflict involving the United States or
(C) any other calamity or crisis or material adverse change in
general economic, political or financial conditions having an
effect on the U. S. financial markets that, in the sole
judgment of the Underwriter, makes it impractical or
inadvisable to proceed with the public offering or the
delivery of the Option Shares as contemplated by the
Registration Statement, as amended as of the date hereof.
(b) Termination of this Agreement pursuant to this Section 12
shall be without liability of any party to any other party except as
provided in Section 11 hereof.
13. Information Supplied by the Underwriter. The information furnished
by the Underwriter to the Company for the purposes of Sections 2(b) and 10
hereof will be set forth in a letter delivered on the Closing Date. The
Underwriter confirms that such statements (to such extent) are correct.
14. Notices. All communications hereunder shall be in writing and, if
sent to the Underwriter, shall be delivered or sent by mail, telex or facsimile
transmission and confirmed in writing to Scott Cook, Raymond James & Associates,
Inc., 880 Carillon Parkway, St. Petersburg,
24
<PAGE> 24
Florida 33716 (727) 573-8274; and if sent to the Company, shall be delivered or
sent by mail, telex or facsimile transmission and confirmed in writing to the
Company at 16800 Greenspoint Park Drive, Suite 225N, Houston, Texas 77060,
(facsimile: (281) 873-4141); and if to the Selling Securityholders, shall be
delivered or sent by mail, telex or facsimile transmission and confirmed in
writing to the Selling Securityholders c/o Kenneth N. Berns, Remy Capital
Partners III, L.P., 1801 Century Park East, Suite 1111, Los Angeles, California
90067 (facsimile: (310) 843-0010).
15. Successors. This Agreement shall inure to the benefit of and shall
be binding upon the Underwriter, the Company, the Selling Securityholders and
their respective successors and legal representatives, and nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any other
person any legal or equitable right, remedy or claim under or in respect of this
Agreement, or any provisions herein contained, this Agreement and all conditions
and provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person except that (i)
the indemnities of the Company and the Selling Securityholders contained in
Sections 10(a) and 10(b) of this Agreement shall also be for the benefit of any
person or persons who control the Underwriter within the meaning of Section 15
of the Act or Section 20 of the Exchange Act and (ii) the indemnities of the
Underwriter contained in Section 10(c) of this Agreement shall also be for the
benefit of the Selling Securityholders, the directors of the Company, the
officers of the Company who have signed the Registration Statement and any
person or persons who control the Company within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act. No purchaser of Option Shares from
any Underwriter shall be deemed a successor because of such purchase.
16. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT,
AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS.
17. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
25
<PAGE> 25
If the foregoing correctly sets forth our understanding,
please indicate your acceptance thereof in the space provided below for that
purpose, whereupon this letter shall constitute an agreement binding the
Company, the Selling Securityholders and the Underwriter.
Very truly yours,
UTI ENERGY CORP.
By:
-------------------------------
Name:
-------------------------------
Title:
-------------------------------
THE SELLING SECURITYHOLDERS
REMY INVESTORS AND
CONSULTANTS, INCORPORATED.
By:
-------------------------------
Name:
-------------------------------
Title:
-------------------------------
--------------------------------------
KENNETH N. BERNS
--------------------------------------
[Spouse of Kenneth N. Berns]
<PAGE> 26
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
RAYMOND JAMES & ASSOCIATES, INC.
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
<PAGE> 27
SCHEDULE 1
SELLING SECURITYHOLDERS
<TABLE>
<CAPTION>
NUMBER OF OPTIONS
AND OPTION SHARES
TO BE SOLD
----------
<S> <C>
SELLING SECURITYHOLDERS:
Remy Investors and Consultants, Incorporated 132,000
Kenneth N. Berns 24,000
-------------
156,000
=============
</TABLE>
Schedule I - Page 1
