EXHIBIT B
STOCK PURCHASE AGREEMENT
By and Among
▇▇▇▇▇▇▇▇▇-UTI ENERGY, INC.
as Purchaser
and
▇▇▇▇▇ FAMILY PROPERTIES, LTD.,
Estate of ▇▇▇ ▇. ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
as Sellers
Dated as of June 11, 2002
TABLE OF CONTENTS
Page
1. Purchase and Sale of Securities; Closing................................................................1
1.1 Purchase and Sale of Securities................................................................1
1.2 Closing........................................................................................1
2. Purchaser's Conditions of Closing.......................................................................2
2.1 Representations and Warranties.................................................................2
2.2 Purchase Permitted by Applicable Laws..........................................................2
2.3 Board Approval.................................................................................2
2.4 J. ▇▇▇▇ ▇▇▇▇▇ Irrevocable Proxy................................................................2
2.5 Compliance with Securities Laws................................................................2
2.6 No Adverse Action or Decision..................................................................2
2.7 No Shareholders Rights Plan; No Reduction in Outstanding Stock.................................2
3. Sellers' Conditions of Closing..........................................................................3
3.1 Representations and Warranties.................................................................3
3.2 Purchase Permitted by Applicable Laws..........................................................3
3.3 Purchase of Securities.........................................................................3
3.4 No Adverse Action or Decision..................................................................3
3.5 Compliance with Securities Laws................................................................3
4. Other Agreements........................................................................................3
4.1 Option.........................................................................................3
4.2 Put............................................................................................4
4.3 Voting Agreement; Irrevocable Proxy............................................................4
4.4 Agreement not to Transfer or Encumber Option Securities........................................4
4.5 No Change in Purchase Price....................................................................5
5. Representations and Warranties of the Sellers...........................................................5
5.1 Existence......................................................................................5
5.2 Power and Authority............................................................................5
5.3 Binding Obligations............................................................................5
5.4 Title to Securities and Option Securities......................................................5
5.5 No Adverse Action or Decision..................................................................5
5.6 No Other Representations and Warranties........................................................6
6. Representations, Warranties and Agreements of J. ▇▇▇▇ ▇▇▇▇▇.............................................6
6.1 Title to ▇▇▇▇▇ Proxy Shares....................................................................6
6.2 Authority; Binding Agreement...................................................................6
6.3 Agreement not to Transfer or Encumber Option Securities........................................6
6.4 No Rights Plan; No Reduction in Outstanding Stock..............................................7
6.5 No Other Representations and Warranties........................................................7
7. Representations and Warranties of Purchaser.............................................................7
7.1 Purchase for Investment........................................................................7
7.2 Power and Authority; Binding Obligation........................................................8
7.3 No Adverse Action or Decision..................................................................8
7.4 No Other Representations or Warranties.........................................................8
8. Termination, Amendment and Waiver.......................................................................8
8.1 Termination....................................................................................8
8.2 Effect of Termination.........................................................................10
9. Miscellaneous..........................................................................................10
9.1 Amendment.....................................................................................10
9.2 Spousal Consent...............................................................................10
9.3 Extension; Waiver.............................................................................10
9.4 Assignment....................................................................................10
9.5 Survival of Representations and Warranties....................................................10
9.6 Successors and Assigns; No Third Party........................................................11
9.7 Notices.......................................................................................11
9.8 Descriptive Headings..........................................................................12
9.9 Governing Law; Consent to Jurisdiction........................................................12
9.10 Remedies......................................................................................12
9.11 Entire Agreement..............................................................................12
9.12 Severability..................................................................................12
9.13 Counterparts..................................................................................12
9.14 Brokerage.....................................................................................13
9.15 Attorneys' Fees...............................................................................13
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STOCK PURCHASE AGREEMENT
This
STOCK PURCHASE AGREEMENT (this "Agreement") is made as of June 11,
2002, by and among ▇▇▇▇▇▇▇▇▇-UTI Energy Inc., a Delaware corporation (the
"Purchaser"), and ▇▇▇▇▇ Family Properties, Ltd., a
Texas limited partnership
(the "Partnership"), Estate of ▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (collectively, with the Partnership,
the "Sellers").
RECITALS
WHEREAS, the Purchaser desires to purchase from the Sellers, and the
Sellers desire to sell to the Purchaser, subject to the terms and conditions set
forth herein, an aggregate of 957,597 shares of common stock, $.10 par value per
share (including the "Option Securities" as defined below) ("Common Stock"), of
TMBR/Sharp Drilling, Inc., a
Texas corporation (the "Company"); and
WHEREAS, the Purchaser and the Sellers wish to enter into certain other
agreements related to the shares of Common Stock owned, directly or indirectly,
by the Sellers;
NOW, THEREFORE, in consideration of the recitals and the mutual
covenants herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
AGREEMENTS
1. PURCHASE AND SALE OF SECURITIES; CLOSING.
1.1 Purchase and Sale of Securities. Subject to the terms and
conditions herein set forth, the Sellers agree to sell to the Purchaser
and the Purchaser agrees to purchase from the Sellers, an aggregate of
762,597 shares of Common Stock (the "Securities"), in the individual
amounts set forth in Schedule 1 to this Agreement, for $16.60 per
share, or an aggregate cash purchase price of $12,659,110.20 (the
"Purchase Price").
1.2 Closing. The purchase and delivery of the Securities shall
take place at a closing (the "Closing") to be held at the offices of
Fulbright & ▇▇▇▇▇▇▇▇ L.L.P., Houston,
Texas, at 10:00 a.m., local time,
on the third business day following the date first written above, or at
such other time and place or on such other business day thereafter as
the parties hereto may agree (herein called the "Closing Date"). On the
Closing Date, (a) the Sellers will deliver to the Purchaser (i)
original certificates evidencing the Securities which are certificated
and held of record by the Sellers, together with appropriate stock
powers, and, (ii) with respect to the Securities that are held by a
broker in an account for the benefit of the Sellers, irrevocable
instructions to such broker to transfer such Securities to the
Purchaser together with appropriate stock powers against (b) receipt of
the purchase price therefor by the Sellers by wire transfer of
immediately available funds to an account or accounts designated by the
Sellers in writing to the Purchaser within one business day of the date
hereof, or by such other payment method as is mutually agreed to by the
Purchaser and the Sellers.
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2. PURCHASER'S CONDITIONS OF CLOSING. The Purchaser's
obligation to purchase and pay for the Securities is subject to the satisfaction
or waiver, on or before the Closing Date, of the conditions precedent contained
in this Section 2.
2.1 Representations and Warranties. The representations and
warranties contained in Sections 5 and 6 hereof shall be true and
correct on and as of the Closing Date, except to the extent of changes
caused by the transactions herein contemplated; and the Sellers shall
have delivered to the Purchaser a certificate of a duly authorized
officer of the general partner of the Partnership and of each of the
other Sellers as to Section 5, dated the Closing Date, to such effect
and J. ▇▇▇▇ ▇▇▇▇▇ shall have delivered to the Purchaser a certificate
as to Section 6.
2.2 Purchase Permitted by Applicable Laws. The purchase of and
payment for the Securities shall not be prohibited by any applicable
law or governmental regulation.
2.3 Board Approval. The Board of Directors of the Purchaser
shall have approved this Agreement and the transactions contemplated
hereby.
2.4 J. ▇▇▇▇ ▇▇▇▇▇ Irrevocable Proxy. At closing, J. ▇▇▇▇ ▇▇▇▇▇
shall have delivered an irrevocable proxy to ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III and
▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Vice President and Chairman of the Board,
respectively, of the Purchaser, in substantially the form attached to
this Agreement as Exhibit B pursuant to Section 4.3(b) of this
Agreement..
2.5 Compliance with Securities Laws. The offer and sale of the
Securities under this Agreement shall have complied with all applicable
requirements of federal and state securities laws.
2.6 No Adverse Action or Decision. There shall be no legal
action, suit, investigation or proceeding pending, or to the
Purchaser's actual knowledge, threatened, against or affecting the
Purchaser or the Company or any of their respective properties or
rights, or any of their respective affiliates, associates, officers or
directors, before any court, arbitrator or administrative or
governmental body which (a) seeks to restrain, enjoin or prevent the
consummation of the transactions contemplated by this Agreement or (b)
questions the validity or legality of any such transaction or seeks to
recover damages or to obtain other relief in connection with any such
transaction.
2.7 No Shareholders Rights Plan; No Reduction in Outstanding
Stock. The Company shall not have adopted a plan, commonly referred to
as a Shareholders' Rights Plan (a "Rights Plan"), which would have the
effect of diluting the value of the Securities and the Option
Securities owned by the Purchaser as compared with the rights of other
holders of Common Stock, and the number of outstanding shares of Common
Stock shall not be more than 25,000 shares less than that reported in
the last quarterly report on Form 10-Q filed by the Company with the
Securities and Exchange Commission.
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3. SELLERS' CONDITIONS OF CLOSING. The Sellers' obligations to
sell the Securities hereunder are subject to the satisfaction or waiver, on or
before the Closing Date, of the conditions precedent contained in this Section
3.
3.1 Representations and Warranties. The representations and
warranties contained in Section 7 of shall be true and correct on and
as of the Closing Date; and the Purchaser shall have delivered to the
Sellers a certificate, dated the Closing Date, to such effect.
3.2 Purchase Permitted by Applicable Laws. The purchase of and
payment for the Securities shall not be prohibited by any applicable
law or governmental regulation.
3.3 Purchase of Securities. The Purchaser shall have purchased
and paid for the Securities.
3.4 No Adverse Action or Decision. There shall be no action,
suit, investigation or proceeding pending, or to the Sellers' actual
knowledge, threatened, against or affecting the Sellers or the Company
or any of their respective properties or rights, or any of their
respective affiliates, associates, officers or directors, before any
court, arbitrator or administrative or governmental body which (a)
seeks to restrain, enjoin, prevent the consummation of or otherwise
adversely affect the transactions contemplated by this Agreement or (b)
questions the validity or legality of any such transaction or seeks to
recover damages or to obtain other relief in connection with any such
transaction.
3.5 Compliance with Securities Laws. The offer and sale of the
Securities under this Agreement shall have complied with all applicable
requirements of federal and state securities laws.
4. OTHER AGREEMENTS.
4.1 Option. The Sellers hereby grant to the Purchaser an
option (the "Option") to purchase, subject to the immediately following
sentence, up to an additional 195,000 shares of Common Stock (the
"Option Securities") at any time, from time to time, in whole or in
part (as determined by Purchaser), on or after October 26, 2002 at a
price per share of $16.60. The Option expires at the earlier of the
termination of this Agreement and 5:00 p.m., Central Time, on December
16, 2002. The Sellers shall sell, and the Purchaser shall purchase with
immediately available funds, any Option Securities as to which the
Purchaser has notified the Sellers that it elects to purchase under the
Option within two business days of the Sellers' receipt of the
Purchaser's written notice of intent to exercise. For purposes of this
Agreement, the Option Securities shall include (a) any stock,
securities or assets into which or for which the shares of Common Stock
initially constituting the Option Securities shall have been converted
or exchanged and (b) any cash, shares of capital stock, other
securities or assets of the Company which have been declared and issued
as a dividend or other distribution in respect of the Option
Securities. Time is of the essence with regard to this Section 4.1.
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4.2 Put. At any time, from time to time, on or after October
26, 2002, the Sellers may request that the Purchaser, and the Purchaser
shall purchase at a price per share of $16.60 all or a portion (as
determined by the Sellers) of the Option Securities (the "Put"). The
Put expires at 5:00 p.m., Central Time, on December 16, 2002. The
Purchaser shall purchase the Option Securities under the Put and
deliver payment of the applicable purchase price therefor in
immediately available funds to the Sellers within two business days of
receipt of the Sellers written notice of intent to exercise the Put.
Time is of the essence with regard to this Section 4.2.
4.3 Voting Agreement; Irrevocable Proxy.
(a) Sellers. If Closing occurs, then from the Closing Date
until 5:00 p.m., Central Time, on December 16, 2002, the
Sellers (i) shall vote, and shall cause any holder of record
of the Option Securities to vote on any matter in which the
holders of the Option Securities are entitled to vote the
total number of Option Securities then remaining exercisable
under the Option as directed by the Purchaser or (ii), at the
option of the Purchaser, shall deliver to ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
and ▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Vice President and Chairman of the
Board, respectively, of the Purchaser, a proxy in
substantially the form attached to this Agreement as Exhibit
A, which proxy shall be irrevocable to the extent permitted by
law, with the total number of Option Securities correctly
indicated thereon.
(b) J. ▇▇▇▇ ▇▇▇▇▇. If the Closing occurs, then at the Closing,
J. ▇▇▇▇ ▇▇▇▇▇ shall deliver to ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III and ▇▇▇▇
▇. ▇▇▇▇▇▇, Senior Vice President and Chairman of the Board,
respectively, of the Purchaser, an irrevocable proxy in the
form attached to this Agreement as Exhibit B with a number of
shares of Common Stock correctly indicated thereon as shall be
requested by the Purchaser on or before the Closing Date, up
to a maximum of 101,000 shares.
4.4 Agreement not to Transfer or Encumber Option Securities.
Each of the Sellers agrees that, from the date of this Agreement until
the earlier of the termination and December 16, 2002, such Seller will
not, and will not permit any entity controlled by such Seller to, (a)
contract to sell, sell or otherwise transfer or dispose of any of the
Option Securities or any interest therein or any voting rights with
respect thereto, other than with the Purchaser's prior written consent
or (b) encumber any of the Option Securities. Within five business days
after the Closing Date, the Sellers shall cause to be placed on each
certificate representing the Option Securities a legend reflecting the
option granted pursuant to Section 4.1 of this Agreement and the voting
agreement and irrevocable proxy granted pursuant to Section 4.3(a) of
this Agreement. If any Option Securities remain unexercised upon
expiration of the Option and the Put, the Purchaser shall cooperate
with the Sellers to cause to be removed the legend referenced in the
immediately preceding sentence.
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4.5 No Change in Purchase Price. The Sellers acknowledge and
agree that notwithstanding any future purchases of shares of Common
Stock by the Purchaser from other holders after the date of this
Agreement at a price per share that is different than the per share
Purchase Price or the per share purchase price under the Option or the
per share price under the Put, none of the Purchase Price, the per
share purchase price under the Option or the per share purchase price
under the Put shall change.
5. REPRESENTATIONS AND WARRANTIES OF THE SELLERS. The Sellers
represent and warrant to the Purchaser as of the date hereof and as of the
Closing Date that:
5.1 Existence. The Partnership is a limited partnership duly
formed, validly existing, and in good standing under the laws of the
State of
Texas. ▇▇▇▇▇ Operations, Inc. is the sole general partner of
the Partnership and is a corporation duly organized, validly existing
and in good standing under the laws of the State of
Texas. J. ▇▇▇▇
▇▇▇▇▇ is the sole independent executor of the Estate of ▇▇▇ ▇. ▇▇▇▇▇.
5.2 Power and Authority. The Partnership has the requisite
limited partnership power and authority and each of the other Sellers
has the authority to execute, deliver, and perform their respective
obligations under this Agreement and to consummate the transactions
contemplated hereby. All action on the part of the Partnership and the
Estate of ▇▇▇ ▇. ▇▇▇▇▇ requisite for the sale and delivery, against
payment therefor, of the Securities and for the due execution,
delivery, and performance of this Agreement has been duly and
effectively taken.
5.3 Binding Obligations. This Agreement is a legal, valid and
binding obligation of the Sellers enforceable in accordance with its
terms (except that enforcement may be subject to (a) any applicable
bankruptcy, insolvency or similar laws generally affecting the
enforcement of creditors' rights (b) general principles in equity
regardless of whether such enforcement is sought in a proceeding in
equity or at law).
5.4 Title to Securities and Option Securities. Each of the
Sellers owns the Securities listed opposite his, her or its name in
Schedule 1 to this Agreement, and the Option Securities set forth
opposite his, her or its name in Schedule 1 to this Agreement and that
are the subject of the Option and the Put, free and clear of any
pledge, hypothecation, assignment, lien, charge, claim, security
interest, option, preference, restriction (except under securities laws
and as contemplated by Section 7.1 of this Agreement), priority or
other preferential arrangement of any kind or nature whatsoever thereon
or affecting the title thereto. Each of the Sellers has owned the
Securities for at least one year (except that 10,000 of the Securities
were acquired on January 25, 2002 and 62,000 of the Securities were
acquired on October 25, 2001) and the Option Securities were acquired
on October 25, 2001.
5.5 No Adverse Action or Decision. To the current actual
knowledge of any of the Sellers, there is no action, suit,
investigation or proceeding pending or threatened against or affecting
any of the Sellers or the Company or any of
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their respective properties or rights, or any of their respective
affiliates, officers or directors, before any court, arbitrator,
administrative or governmental body which (a) seeks to restrain, enjoin
or prevent the consummation of the transactions contemplated by this
Agreement or (b) questions the validity or legality of any such
transaction or seeks to recover damages or to obtain other relief in
connection with any such transaction; provided, however, that with
respect to the representation in this Section 5.5 as to a Seller's
current actual knowledge of any action, suit, investigation or
proceeding pending or threatened against or affecting the Company, such
representation is made severally as to such Seller.
5.6 No Other Representations and Warranties. Except as set
forth in this Agreement, the Sellers make no other representations or
warranties to the Purchaser.
6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF J. ▇▇▇▇
▇▇▇▇▇.
6.1 Title to ▇▇▇▇▇ Proxy Shares. J. ▇▇▇▇ ▇▇▇▇▇ represents and
warrants to the Purchaser that he is the record holder of at least
101,000 shares of Common Stock, all or a portion of which will be the
subject of the irrevocable proxy to be delivered by him pursuant to
Section 2.4 of this Agreement (the "▇▇▇▇▇ Proxy Shares"), that he owns
such shares free and clear of any pledge, hypothecation, assignment,
lien, charge, claim, security interest, option, preference, restriction
(except under securities laws and as contemplated by Section 7.1 of
this Agreement), priority or other preferential arrangement of any kind
or nature whatsoever thereon or affecting the title thereto and that he
has owned such shares for at least one year.
6.2 Authority; Binding Agreement. J. ▇▇▇▇ ▇▇▇▇▇ represents and
warrants to the Purchaser that he has the requisite authority to
execute, deliver, and perform his obligations under this Agreement and
to deliver the irrevocable proxy in respect of the ▇▇▇▇▇ Proxy Shares
hereunder and that this Agreement is a legal, valid and binding
obligation of his enforceable in accordance with its terms (except that
enforcement may be subject to (a) any applicable bankruptcy, insolvency
or similar laws generally affecting the enforcement of creditors'
rights (b) general principles in equity regardless of whether such
enforcement is sought in a proceeding in equity or at law).
6.3 Agreement not to Transfer or Encumber Option Securities.
J. ▇▇▇▇ ▇▇▇▇▇ agrees that, from the date of this Agreement until the
earlier of the termination of this Agreement and December 16, 2002, he
will not, and will not permit any entity controlled by him to, (a)
contract to sell, sell or otherwise transfer or dispose of any of the
▇▇▇▇▇ Proxy Shares or any interest therein or any voting rights with
respect thereto, other than those shares that are released from the
irrevocable proxy pursuant to the terms thereof or with the Purchaser's
prior written consent or (b) encumber any of the ▇▇▇▇▇ Proxy Shares.
Within five business days after the Closing Date, J. ▇▇▇▇ ▇▇▇▇▇ shall
cause to be placed on each certificate representing 70,000 of the ▇▇▇▇▇
Proxy Shares a legend reflecting the irrevocable proxy granted pursuant
to this Agreement. At the earlier of the termination of this Agreement
and the expiration of the irrevocable proxy in
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respect of the ▇▇▇▇▇ Proxy Shares, the Purchaser shall cooperate with
J. ▇▇▇▇ ▇▇▇▇▇ to cause to be removed the legend referenced in the
immediately preceding sentence.
6.4 No Rights Plan; No Reduction in Outstanding Stock. J. ▇▇▇▇
▇▇▇▇▇ represents and warrants to the Purchaser that to his actual
knowledge the Company has not adopted a Rights Plan and the number of
shares of Common Stock outstanding at present equals or exceeds the
number reported as outstanding in the last quarterly report on Form
10-Q filed by the Company with the Securities and Exchange Commission.
6.5 No Other Representations and Warranties. Except as set
forth in this Agreement, J. ▇▇▇▇ ▇▇▇▇▇ makes no other representations
or warranties to the Purchaser.
7. REPRESENTATIONS AND WARRANTIES OF PURCHASER. The Purchaser
represents and warrants to the Sellers that:
7.1 Purchase for Investment.
(a) The Purchaser is acquiring the Securities for its own
account and not with a view to the public resale or
distribution of all or any part thereof in any transaction
which would constitute a "distribution" within the meaning of
the Securities Act of 1933, as amended (the "Securities Act").
(b) The Purchaser acknowledges that the Securities have not
been registered under the Securities Act.
(c) The Purchaser is an "accredited investor" within the
meaning of Rule 501 under Regulation D promulgated under the
Securities Act, is experienced in evaluating investments in
companies such as the Company, has such knowledge and
experience in financial and business matters as to be capable
of evaluating the merits and risks of its investment and has
the ability to bear the entire economic risk of his
investment.
(d) The Purchaser acknowledges that the Securities may not be
sold, transferred, pledged, hypothecated, or otherwise
disposed of without registration under the Securities Act or
an exemption therefrom, and that in the absence of an
effective registration statement covering the Securities or an
available exemption from registration under the Securities
Act, the Securities must be held indefinitely.
(e) The Purchaser agrees that the Shares shall bear legends in
substantially the following form or such other form as may be
required by applicable law:
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"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
OR ANY APPLICABLE STATE LAW, AND NO INTEREST THEREIN
MAY BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE
OF SUCH REGISTRATION AND QUALIFICATION WITHOUT AN
OPINION OF LEGAL COUNSEL FOR THE HOLDER THAT SUCH
REGISTRATION AND QUALIFICATION ARE NOT REQUIRED,
WHICH OPINION AND COUNSEL SHALL BE REASONABLY
SATISFACTORY TO LEGAL COUNSEL FOR THE COMPANY."
7.2 Power and Authority; Binding Obligation. The Purchaser has
all requisite capacity and authority to enter into this Agreement and
to carry out and perform its obligations under the terms of this
Agreement. This Agreement is a legal, valid and binding obligation of
the Purchaser enforceable in accordance with its terms (except that
enforcement may be subject to (a) any applicable bankruptcy, insolvency
or similar laws generally affecting the enforcement of creditors'
rights (b) general principles in equity regardless of whether such
enforcement is sought in a proceeding in equity or at law, and except
to the extent enforceability of the indemnification provisions may be
limited under applicable securities laws).
7.3 No Adverse Action or Decision. To the current actual
knowledge of the Purchaser, there is no action, suit, investigation or
proceeding pending or threatened against or affecting either the
Purchaser or the Company or any of their respective properties or
rights, or any of their respective affiliates, officers or directors,
before any court, arbitrator, administrative or governmental body which
(a) seeks to restrain, enjoin or prevent the consummation of the
transactions contemplated by this Agreement or (b) questions the
validity or legality of any such transaction or seeks to recover
damages or to obtain other relief in connection with any such
transaction.
7.4 No Other Representations or Warranties. Except as set
forth in this Agreement, the Purchaser makes no other representations
or warranties to the Sellers.
8. TERMINATION, AMENDMENT AND WAIVER.
8.1 Termination. This Agreement may be terminated at any time
prior to the Closing Date:
(a) by mutual written consent of the Purchaser and the
Sellers;
(b) by either the Purchaser or the Sellers;
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(i) if the Closing shall not have occurred on or
before June 21, 2002, unless the failure to
consummate the transaction contemplated by
this Agreement is the result of a material
breach of this Agreement by the party
seeking to terminate this Agreement;
provided, that such date shall be July 10,
2002 only if the failure to consummate the
transaction contemplated by this Agreement
is a result of a condition in Section 2.6 or
3.4 not being met; and provided, further,
that with respect to this Section 8.1(b)(i),
time is of the essence;
(ii) if any permanent injunction or other order
of a court or other competent authority
preventing the consummation of the
transactions contemplated by this Agreement
shall have become final and nonappealable;
or
(iii) if the Board of Directors of the Purchaser
shall not have approved this Agreement in
its entirety by 6:00 p.m., Central Time, on
the second business day following the date
first written above and the secretary or
assistant secretary of the Purchaser shall
not have delivered to the Sellers on or
before the third business day following the
date first written above a certificate
certifying to the resolutions adopted by the
Board of Directors of the Purchaser in
respect of such approval; provided that with
respect to this Section 8.1(b)(iii), time is
of the essence.
(c) by the Purchaser, if any of the Sellers breaches any of
their representations or warranties herein or fails to perform
in any material respect any of their covenants, agreements or
obligations under this Agreement;
(d) by the Sellers, if the Purchaser breaches any of its
representations or warranties herein or fails to perform in
any material respect any of its covenants, agreements or
obligations under this Agreement; and
(e) by the Sellers, by written notice to the Purchaser, if the
Closing has not occurred because the condition set forth in
Section 2.6 has not been satisfied as a result of the
Purchaser being aware of an oral threat as set forth in
Section 2.6 and such oral
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threat is not made in writing within seven days after the
Purchaser first became aware of such oral threat.
8.2 Effect of Termination. In the event of termination of this
Agreement by either the Sellers or the Purchaser, this Agreement shall
forthwith become void and have no effect, without any liability or
obligation on the part of the Purchaser or the Sellers.
9. MISCELLANEOUS.
9.1 Amendment. This Agreement may be amended in writing by the
parties hereto at any time. No party to this Agreement shall have any
authority to amend this Agreement unless such amendment is in an
instrument in writing signed on behalf of each of the parties.
9.2 Spousal Consent. The spouses of each Seller who is married
also are executing this Agreement. By executing this Agreement, each of
such spouses (a) acknowledges that he or she knows of the contents of
this Agreement, (b) consents to the entering into of this Agreement by
his or her spouse and (c) agrees that this Agreement shall be binding
upon such spouse to the extent of his or her community property
interest, if any.
9.3 Extension; Waiver. At any time prior to the Closing Date,
the parties may, to the extent legally allowed, (a) extend the time for
the performance of any of the obligations or the other acts of the
other parties, (b) waive any inaccuracies in the representations and
warranties contained herein or in any document delivered pursuant
hereto or (c) waive compliance of the other parties with any of the
agreements or conditions contained herein. Any agreement on the part of
a party to any such extension or waiver shall be valid only if set
forth in an instrument in writing signed on behalf of such party. The
failure of any party to this Agreement to assert any of its rights
under this Agreement or otherwise shall not constitute a waiver of such
rights.
9.4 Assignment. This Agreement shall not be assigned by
operation of law or otherwise, and any attempt at assignment shall be
void; provided, however, that the Purchaser may transfer or assign, in
whole or from time to time in part, to one or more of its Affiliates,
its rights under this Agreement, but no such transfer or assignment
will relieve the Purchaser of its obligations under this Agreement. For
purposes of this Section 9.4, the term "Affiliate" means, with respect
to the Purchaser, any other individual, corporation, partnership,
limited liability company, association, trust or other entity or
organization directly or indirectly controlling, controlled by or under
common control with the Purchaser.
9.5 Survival of Representations and Warranties. All
representations and warranties contained herein or made in writing by
or on behalf of any party to this Agreement in connection herewith
shall survive the execution and delivery of this Agreement.
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9.6 Successors and Assigns; No Third Party. All covenants and
agreements in this Agreement contained by or on behalf of the parties
hereto shall bind and inure to the benefit of the respective successors
and assigns of the parties hereto and, to the extent provided in this
Agreement. Subject to the foregoing, nothing in this Agreement shall
confer upon any person or entity not a party to this Agreement, or the
legal representatives of such person or entity, any rights or remedies
of any nature or kind whatsoever under or by reason of this Agreement.
9.7 Notices. All communications provided for hereunder shall
be (a) in writing, (b) effective (i) upon receipt if delivered
personally, (ii) three business days after the date of postmark by the
United States Postal Service when mailed by registered or certified
mail, return receipt requested, postage paid, (iii) the next business
day following delivery to a reputable overnight courier service, or
(iv) upon receipt if sent by facsimile transmission and confirmed, and
(c) addressed as follows:
If to the Purchaser:
▇▇▇▇▇▇▇▇▇-UTI Energy, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ (▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇)
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: 915/574-6307
Confirmation No.: 915/574-6300
Attention: Chief Executive Officer
With a copy to:
Fulbright & ▇▇▇▇▇▇▇▇ L.L.P.
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: 713/651-5246
Confirmation No.: 713/651-5427
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
If to the Sellers, to:
c/▇ ▇▇▇▇▇ Operations, Inc.
2409 Never Bend Cove
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: 512/306-1615
Confirmation No.: 512/342-8811
Attention: J. ▇▇▇▇ ▇▇▇▇▇
-11-
With a copy to:
Armbrust & ▇▇▇▇▇, L.L.P.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: 512/435-2360
Confirmation No.: 512/435-2302
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
or to such other address with respect to any party as such party shall
notify the other in writing. Within 5 days after the date of such
mailing (save for any postal interruption) such communication shall be
deemed to have been received.
9.8 Descriptive Headings. The descriptive headings of the
several Paragraphs of this Agreement are inserted for convenience only
and do not constitute a part of this Agreement.
9.9 Governing Law; Consent to Jurisdiction. This Agreement
shall be construed and enforced in accordance with, and the rights of
the parties shall be governed by, the law of the State of
Texas without
giving effect to the choice of law or conflicts principles thereof. Any
legal action or proceeding with respect to this Agreement may be
brought in the courts of the State of
Texas or of the United States of
America for the Northern District of
Texas, and, by execution and
delivery of this Agreement, the Company hereby accepts for itself and
in respect of its property, generally and unconditionally, the
jurisdiction of the aforesaid courts. The Purchaser and each of the
Sellers irrevocably consents to the service of process out of any of
the aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage
prepaid, to its address set forth herein, such service to become effect
30 days after such mailing. Nothing herein shall affect the right of
the Sellers or the Purchaser to serve process in any other manner
permitted by law.
9.10 Remedies. In case any one or more of the covenants or
agreements set forth in this Agreement shall have been breached by the
Sellers or the Purchaser, the Sellers or the Purchaser, as applicable,
may proceed to protect and enforce its or their rights either by suit
in equity or by action at law or both, including, without limitation,
specific performance.
9.11 Entire Agreement. This Agreement and the other writings
referred to herein or delivered pursuant hereto contain the entire
agreement among the parties with respect to the subject matter hereof
and supersede all prior and contemporaneous arrangements or
understandings with respect thereto.
9.12 Severability. Any provisions of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof,
and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other
jurisdiction.
9.13 Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be
deemed an original, but which together shall constitute a single
agreement.
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9.14 Brokerage. Each party hereto will indemnify and hold
harmless the others against and in respect of any claim for brokerage
or other commissions relative to this Agreement or to the transactions
contemplated hereby, based in any way on agreements, arrangements or
understandings made or claimed to have been made by such party with any
third party.
9.15 Attorneys' Fees. Each party shall be responsible for his,
her or its own attorneys' fees with respect to (a) the negotiation and
preparation of this Agreement and the consummation of the transactions
contemplated hereby and (b) claims, if any, made by any third party
with respect to any consummation of or performance of this Agreement,
except for the costs and expenses, including attorneys' fees, of
enforcing a party's rights or otherwise obtaining a remedy under this
Agreement for breach of this Agreement by the other party.
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IN WITNESS WHEREOF, the parties hereto caused this Agreement to be duly
executed and delivered as of the date first above written.
SELLERS
▇▇▇▇▇ Family Properties, Ltd.
By ▇▇▇▇▇ Operations, Inc.,
its general partner
By: /s/ J. ▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Name: J. ▇▇▇▇ ▇▇▇▇▇
Title: President
Estate of ▇▇▇ ▇. ▇▇▇▇▇
By: /s/ J. ▇▇▇▇ ▇▇▇▇▇
----------------------------------------
J. ▇▇▇▇ ▇▇▇▇▇, Independent Executor
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-14-
SPOUSES:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/ J. ▇▇▇▇ ▇▇▇▇▇
-------------------------------------------
J. ▇▇▇▇ ▇▇▇▇▇, in his individual capacity
for purposes of Sections 2.4, 4.3(b), 6 and
9.
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PURCHASER
▇▇▇▇▇▇▇▇▇-UTI Energy Inc.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
Title: Senior Vice President
-16-
EXHIBIT A
FORM OF IRREVOCABLE PROXY
The undersigned, for consideration received, hereby appoints ▇▇▇▇ ▇.
▇▇▇▇▇▇▇, III, Senior Vice President of ▇▇▇▇▇▇▇▇▇-UTI Energy Inc. (the
"Purchaser") and ▇▇▇▇ ▇. ▇▇▇▇▇▇, the Chairman of the Board of the Purchaser, and
each of them, the undersigned's proxy, with power of substitution, to vote
_________ shares of common stock, par value $.10 per share (the "Common Stock"),
of TMBR/Sharp Drilling, Inc. (the "Company") on any matter coming before the
holders of Common Stock of the Company. This proxy (a) expires December 16, 2002
and (b) is entered into in connection with that certain
Stock Purchase
Agreement, dated June __, 2002 between the Purchaser and the undersigned and the
other Sellers named therein and is coupled with an interest and is irrevocable.
For purposes of this irrevocable proxy, the Common Stock shall be deemed to
include any stock or securities into or for which the Common Stock may be
converted or exchanged.
Dated this ________ day of _________, 2002.
-------------------------------------------
(Signature of Shareholder)
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EXHIBIT B
FORM OF IRREVOCABLE PROXY
The undersigned, for consideration received, hereby appoints ▇▇▇▇ ▇.
▇▇▇▇▇▇▇, III, Senior Vice President of ▇▇▇▇▇▇▇▇▇-UTI Energy Inc. (the
"Purchaser") and ▇▇▇▇ ▇. ▇▇▇▇▇▇, the Chairman of the Board of the Purchaser, and
each of them, the undersigned's proxy, with power of substitution, to vote up to
_________ shares of common stock, par value $.10 per share (the "Common Stock"),
of TMBR/Sharp Drilling, Inc. (the "Company") on any matter coming before the
holders of Common Stock of the Company. This proxy (a) expires December 16, 2002
and (b) is entered into in connection with that certain
Stock Purchase
Agreement, dated June 11, 2002 between the Purchaser and the undersigned and the
Sellers named therein and is coupled with an interest and is irrevocable. In
addition, (a) up to 31,000 shares of the Common Stock subject to this
irrevocable proxy shall automatically be released from this proxy if and when
such shares are sold in unsolicited brokers transactions within the meaning of
rule 144 of the rules and regulations of the Securities and Exchange Commission,
(b) any shares of Common Stock subject to this irrevocable proxy that shall have
been converted into or exchanged for securities of the Purchaser shall
automatically be released from this proxy and (c) in the event that the
Purchaser tenders all of its voting securities of the Company to a third party,
all shares of Common Stock subject to this irrevocable proxy shall automatically
be released. The number of shares of Common Stock subject to this irrevocable
proxy may be reduced at any time, from time to time, by either ▇▇. ▇▇▇▇▇▇▇ or
▇▇. ▇▇▇▇▇▇, by written notice to the undersigned. For purposes of this
irrevocable proxy, the Common Stock shall be deemed to include any stock or
securities into or for which the Common Stock may be converted or exchanged.
Dated this ________ day of June, 2002.
--------------------------------
J. ▇▇▇▇ ▇▇▇▇▇
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SCHEDULE 1
SECURITIES OWNED BY SELLERS
Name of Seller Number of Securities Number of Option Securities Total
-------------- -------------------- --------------------------- -----
▇▇▇▇▇ Family Properties, Ltd. 657,854 -- 657,854
Estate of ▇▇▇ ▇. ▇▇▇▇▇ 72,000 195,000 267,000
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 29,397 -- 29,397
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ 1,173 -- 1,173
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 2,173 -- 2,173
Total 762,597 195,000 957,597
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