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UTI ENERGY CORP.
1,300,000 Shares
Common Stock
UNDERWRITING AGREEMENT
January 10, 2001
Raymond James & Associates, Inc.
880 Carillon Parkway
St. Petersburg, Florida 33716
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
Raymond James & Associates, Inc. (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 1,300,000 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
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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 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
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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 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
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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.
(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
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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 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
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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 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
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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 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.
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(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 $28.50 per Share of Common
Stock ("the "Initial Price"), the Shares to be sold by the Selling
Securityholder. 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 January 16, 2001, 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."
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
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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 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
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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.
(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).
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(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 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
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<PAGE> 12
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 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.
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<PAGE> 13
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 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").
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<PAGE> 14
(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.
(d) The Underwriter shall have received an opinion, dated the Closing
Date, of Stroock & Stroock & Lavan LLP, 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
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<PAGE> 15
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 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.
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<PAGE> 16
(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 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.
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<PAGE> 17
(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 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
-17-
<PAGE> 18
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 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
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<PAGE> 19
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 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
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<PAGE> 20
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) 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
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<PAGE> 21
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 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),
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<PAGE> 22
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 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 Steven Grant, Raymond James &
Associates, Inc., 880 Carillon Parkway, St. Petersburg, Florida 33716,
(facsimile: (713) 266-4117), with a copy to Anna T. Pinedo, Stroock & Stroock &
Lavan LLP, 180 Maiden Lane, New York, New York 10038, (facsimile: (212)
806-6006; 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
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<PAGE> 23
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.
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.
RAYMOND JAMES & ASSOCIATES, INC.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
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