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EXHIBIT 1.1
UTI ENERGY CORP.
1,000,000 Shares
Common Stock
UNDERWRITING AGREEMENT
December 19, 2000
CIBC World Markets Corp.
One World Financial Center
New York, NY 10281
Dear Sirs:
Remy Capital Partners III, L.P., a Delaware limited
partnership and a securityholder (the "Selling Securityholder") of UTI Energy
Corp., a Delaware corporation (the "Company"), and the Company hereby confirm
their agreement with CIBC World Markets Corp. (the "Underwriter") as set forth
below:
1. Shares. Subject to the terms and conditions herein contained, the
Selling Securityholder proposes to sell to the Underwriter 1,000,000 shares of
the Company's outstanding common stock, par value $.001 per share (the "Common
Stock").
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 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 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
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
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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 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 Securityholder 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
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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, including the Shares to
be sold by the Selling Securityholder, have been duly authorized and
validly issued and are 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 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) 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.
(f) 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.
(g) The Shares are listed on the American Stock Exchange (the
"AMEX").
(h) 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
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(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.
(i) 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.
(j) 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.
(k) 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).
(l) The compliance by the Company with the 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 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,
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defaults, violations, creations or impositions that would not affect
the consummation of the Agreement, the issuance of the Shares or have a
Material Adverse Effect.
(m) 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 case as described
in or contemplated by the Prospectus or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus.
(n) 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 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 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 Shares by the Selling Securityholder and except in connection with
acquisitions by the Company or its subsidiaries of assets or businesses
in the oilfield services industry).
(o) 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).
(p) 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.
(q) The Company has not distributed and, prior to the later of
(i) the Closing Date and (ii) the completion of the distribution of the
Shares, will not distribute any
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offering material in connection with the offering and sale of the
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.
(r) Each certificate signed by any officer of the Company and
delivered to the Underwriter pursuant to this Agreement or in
connection with the payment of the purchase price and delivery of the
certificates for the Shares shall be deemed to be a representation and
warranty by the Company to the Underwriter as to the matters covered
thereby.
3. Representations and Warranties of the Selling Securityholder. The
Selling Securityholder represents and warrants to, and agrees with, the
Underwriter that:
(a) The 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 Shares to be
sold by the 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 the Selling Securityholder; and this Agreement has been
duly executed and delivered by the Selling Securityholder and is the
valid and binding agreement of the Selling Securityholder, enforceable
against the Selling Securityholder in accordance with its terms.
(b) The Selling Securityholder has good and valid title to the
Shares to be sold by the Selling Securityholder hereunder, and such
Shares are owned beneficially by the Selling Securityholder free and
clear of any security interests, liens, encumbrances, equities or
claims. Upon sale and delivery of, and payment for, the Shares, as
provided herein, the Underwriter will receive good and valid title to
such Shares.
(c) The 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 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 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 Shares by the Selling
Securityholder).
(d) 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 to the Company by the
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
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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. The
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 the
Selling Securityholder set forth therein under the caption "Selling
Securityholders" is complete and accurate.
(e) The 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).
(f) The sale of the Shares to the Underwriter by the Selling
Securityholder pursuant to this Agreement, the compliance by the
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 Shares (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)
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 Selling Securityholder or any of its subsidiaries is a party
or by which the Selling Securityholder or any of its subsidiaries or
any of the Selling Securityholder's properties are bound, or the
charter documents, by-laws, partnership agreement or other governing
document of the 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
the Selling Securityholder or any of its subsidiaries.
(g) The Selling Securityholder has not distributed and, prior
to the later of (i) the Closing Date and (ii) the completion of the
distribution of the Shares, will not distribute any offering material
in connection with the offering and sale of the 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.
(h) The Selling Securityholder is not prompted to sell any
Shares by any information concerning the Company that is not set forth
in the Registration Statement.
4. Purchase, Sale and Delivery of the Shares. On the basis of the
representations, warranties, agreements and covenants herein contained and
subject to the terms and conditions herein set forth, the Selling Securityholder
agrees to sell to the Underwriter, and the Underwriter agrees to purchase from
the Selling Securityholder, at a purchase price of $27.00 per Share of
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Common Stock ("the "Initial Price"), the Shares to be sold by the Selling
Securityholder, provided that in the event the Underwriter realizes an average
sale price of more than $27.75 per share based on the aggregate of all the
Shares, the Underwriter will pay to the Selling Securityholder an amount (the
"Additional Amount") equal to 50% of the amount by which the actual sales
proceeds with respect to all shares exceed $27.75 million. The Shares shall be
delivered by or on behalf of the Selling Securityholder to the Underwriter
through the facilities of The Depository Trust Company ("DTC") for its account
against payment by the Underwriter of the Initial Price for the Shares by wire
transfer in same-day funds to the account designated by the Selling
Securityholder. Such delivery of and payment for the Shares shall be made at the
offices of Fulbright & Jaworski L.L.P., 1301 McKinney, Houston, Texas at 9:00
a.m. on December 22, 2000, or at such other place, time or date as the
Underwriter, the Selling Securityholder 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." The Additional Amount, if any, shall
be paid by wire transfer in same day funds to the account designated by the
Selling Securityholder by noon Eastern Time on the third business day after the
sale of the last of the Shares by the Underwriter.
5. Offering by the Underwriter. Upon authorization by the Selling
Securityholder and the Company of the release of the Shares, the Underwriter
proposes to offer the 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 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 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 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
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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 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 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) 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 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 Shares is required by
the Act to be delivered in connection with sales by the Underwriter or
a dealer, as many copies of the Prospectus and any amendment or
supplement thereto as the Underwriter may reasonably request.
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(e) 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.
(f) 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 Shares.
(g) 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 Securityholder. The Selling Securityholder
covenants and agrees with the Underwriter that:
(a) The 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 Shares or (ii) sell,
bid for, purchase, or pay anyone any compensation for soliciting
purchases of, the Shares.
(b) The Selling Securityholder agrees to deliver to you prior
to or at the Closing Date a properly completed and executed United
States Treasury Department 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 Shares to be sold by the
Selling Securityholder to the Underwriter hereunder will have been
fully paid for by the Selling Securityholder and all laws imposing such
taxes will have been fully complied with.
8. Expenses. The Company and the Selling Securityholder, 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 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 Securityholder, (iv) preparation, issuance and delivery to the
Underwriter of any certificates evidencing the Shares, including transfer
agent's and registrar's fees, (v) the qualification of the
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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 Shares, and (vii) the listing of the
Shares on the American Stock Exchange. If the sale of the Shares 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 Shares. 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 Shares shall be subject, in the
Underwriter's sole discretion, to the accuracy of the representations and
warranties of the Company and the 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 the Selling
Securityholder's officers made pursuant to the provisions hereof, to the
performance by the Company and the Selling Securityholder of its covenants and
agreements hereunder and to the following additional conditions:
(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 and is qualified to do business
in the State of Texas;
(ii) the Company has authorized capital stock as set
forth in the Prospectus and the description of the capital
stock of the Company conforms in all material respects to the
description thereof contained in the Prospectus; the Shares
have been duly authorized and validly issued and are 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
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<PAGE> 12
Shares under the Delaware General Corporation Law or the
Company's Certificate of Incorporation or by-laws;
(iii) 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;
(iv) 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
(v) 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 Securityholder, 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 and, to the knowledge of such counsel, the
Registration Statement is effective under the Act, and no stop
order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose
has been instituted or is threatened, pending or contemplated.
Such counsel shall also state that it has participated in telephone calls and
exchanges of information and comments with officers and other representatives of
the Company, the Selling Securityholder and representatives of the independent
public accountants of the Company, with respect to the contents of the
Registration Statement and the Prospectus. 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 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, as 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 of a financial or
accounting
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<PAGE> 13
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 Securityholder shall have furnished to the
Underwriter the opinion of Fulbright & Jaworski L.L.P., counsel for the
Selling Securityholder, dated the Closing Date, to the effect that:
(i) (a) Upon the payment to the Selling
Securityholder for the Shares in accordance
with this Agreement, the Underwriter will
be the entitlement holders of the security
entitlements credited on the date hereof in
respect of such shares to any of the
accounts maintained by [insert name of the
securities intermediary] on behalf of the
Underwriter (as the terms "entitlement
holder" and "securities entitlement" are
defined under Article 8 of the Uniform
Commercial Code as in effect in the State
of New York (the "NYUCC").
(b) The Underwriter will acquire their
respective interests in such security
entitlements free of any "adverse claim"
(as that term is defined under Section
8-102 of the NYUCC), assuming that each of
the underwriters does not have notice of
any adverse claims to the Shares at the
time they take control of such security
entitlements (pursuant to Section 8-106 of
the NYUCC).
(ii) The execution and delivery of this Agreement
have been duly authorized by all necessary corporate action of
the Selling Securityholder and this Agreement has been duly
executed and delivered by the Selling Securityholder; and
(iii) The sale of the Shares to the Underwriter by
the Selling Securityholder pursuant to this Agreement, the
compliance by the Selling Securityholder with the other
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 partnership agreement or other governing
documents of the 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.
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<PAGE> 14
(d) The Underwriter shall have received an opinion, dated the
Closing Date, of Vinson & Elkins L.L.P., counsel for the Underwriter,
with respect to the sale of the 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 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 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 stockholders, 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
-14-
<PAGE> 15
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
Shares as contemplated by the Registration Statement, as amended as of the date
hereof.
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
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<PAGE> 16
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 the Selling Securityholder to the effect that the
representations and warranties of the Selling Securityholder in this
Agreement are true and correct as if made on and as of the Closing
Date.
(h) The Underwriter shall have received such documentation as
may be necessary to deliver the Shares to the Underwriter 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
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<PAGE> 17
(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 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 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
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) The Selling Securityholder 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
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<PAGE> 18
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 Securityholder contained herein or any
failure of the Selling Securityholder 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 the
Selling Securityholder for use therein. Subject to the limitations set
forth in the immediately preceding sentence, the Selling Securityholder
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 any such loss, claim, damage, liability or any action in
respect thereof. This indemnity agreement will be in addition to any
liability which the Selling Securityholder may otherwise have. The
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 Securityholder
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 the Selling Securityholder and each person,
if any, who controls the Company or the 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
-18-
<PAGE> 19
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 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.
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<PAGE> 20
(e) The Selling Securityholder shall not be liable to the
Underwriter for a breach of this Agreement or indemnification hereunder
for an amount exceeding the amount of cash received by the Selling
Securityholder upon the sale of its 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
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, 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 Securityholder 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 Securityholder 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 Shares to the public and
the total price that the Underwriter pays to purchase the Shares from
the Selling Securityholder). 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 Securityholder 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 Securityholder 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 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 the Selling Securityholder within the
meaning of
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<PAGE> 21
Section 15 of the Act or Section 20 of the Exchange Act, shall have the
same rights to contribution as the Company or the 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 Securityholder 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, the Selling
Securityholder, the Underwriter or any controlling person referred to in Section
10 hereof and (ii) delivery of and payment for the 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.
(a) This Agreement may be terminated with respect to the
Shares in the sole discretion of the Underwriter by notice to the
Selling Securityholder given prior to the Closing Date in the event
that the Company or the 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
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sole judgment of the Underwriter, makes it impractical or
inadvisable to proceed with the public offering or the
delivery of the 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 Ron Ormand, CIBC World Markets Corp.,
1600 Smith St., Suite 3000, Houston Texas 77002, (facsimile: (713) 650-7672);
and if sent to the Company, shall be delivered or sent by mail, telex or
facsimile transmission and confirmed in writing to the Company c/o John E.
Vollmer III at 16800 Greenspoint Park Drive, Suite 225N, Houston, Texas 77060,
(facsimile: (281) 873-4141); and if to the Selling Securityholder, shall be
delivered or sent by mail, telex or facsimile transmission and confirmed in
writing to the Selling Securityholder 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 Securityholder 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 Securityholder 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 Securityholder, 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 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.
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<PAGE> 23
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.
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<PAGE> 24
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 Securityholder and the Underwriter.
Very truly yours,
UTI ENERGY CORP.
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
THE SELLING SECURITYHOLDER
REMY CAPITAL PARTNERS III, L.P.
By: Remy Investors and Consultants,
Incorporated, its General Partner
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
CIBC WORLD MARKETS CORP.
By:
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Name:
-------------------------
Title:
-------------------------
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