EXECUTION COPY
EXHIBIT D
REGISTRATION RIGHTS AGREEMENT IN FAVOR OF
THE HOLDERS OF REGISTRABLE SECURITIES
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and entered
into as of April 11, 1997 by and among UTI Energy Corp., a Delaware corporation
(the "Company"), and the holders of Registrable Securities (the "Holders")
signatory to this Agreement.
This Agreement is made pursuant to the Warrant Agreement (the "Warrant
Agreement") dated as of April 11, 1997 by and among the Company and the Warrant
Holders (as defined in the Warrant Agreement), pursuant to which the Holders are
receiving common stock warrants (the "Warrants") in connection with the purchase
of $25,000,000 of the Company's 12% notes pursuant to a note purchase agreement,
dated as of April 11, 1997 between the Company and the purchasers named
therein.
The parties hereby agree as follows:
1. CERTAIN DEFINITIONS.
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As used in this Agreement, the following terms shall have the
following respective meanings:
(a) AFFILIATE of a specified Person means any other Person that
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directly, or indirectly through one or more intermediates, controls, is
controlled by or is under common control with the Person specified, or who holds
or beneficially owns 50% or more of the equity interest in the Person specified
or 50% or more of the voting securities of the Person specified. A managed
account of a Person is also an Affiliate of such Person.
(b) BUSINESS DAY means any day on which banking institutions
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in Los Angeles, California are authorized or obligated by law or executive order
to close.
(c) COMMISSION means the Securities and Exchange Commission.
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(d) COMPANY means UTI Energy Corp. or any successor to it or to
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its business.
(e) COMMON STOCK means (except where the context otherwise indicates)
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the Common Stock of the Company, par value $0.001 per share, as constituted on
its original date of issue by the Company, and any capital stock into which such
Common Stock may thereafter be changed, and shall also include (i) capital stock
of the Company of any other class (regardless of how denominated) issued to the
holders of shares of any Common Stock upon any reclassification thereof which is
also not preferred as to dividends or liquidation over any other class of stock
of the Company and which is not subject to redemption and (ii) shares of common
stock of any successor corporation or acquiring corporation.
(f) DEMANDING HOLDERS shall have the meaning set forth in Section
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2(a)
(g) DEMAND REGISTRATION shall have the meaning set forth in
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Section 2(a).
(h) EXCHANGE ACT means the Securities Exchange Act of 1934, as
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amended, and the rules and regulations of the Commission promulgated thereunder.
(i) EXPIRATION DATE means the date on which no Holder holds any
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Registrable Securities.
(j) HOLDERS shall have the meaning set forth in the first paragraph
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hereof.
(k) OTHER COMMON STOCK shall have the meaning set forth in Section
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4(b) hereof.
(l) PERSON means any individual, corporation, partnership, joint
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venture, association, joint-stock company, limited liability company, trust,
unincorporated organization or government or other agency or political
subdivision thereof.
(m) PIGGYBACK REGISTRATION shall have the meaning set forth in
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Section 2(b) hereof.
(n) PIGGYBACK SHARES shall have the meaning set forth in Section
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2(c) hereof.
(o) REGISTRABLE SECURITIES means any Warrant Shares (as defined below)
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which may be acquired and owned by a Holder, or any securities received by a
Holder in exchange for such securities and any shares of Common Stock held by
Remy. As to any particular Registrable Securities, such securities shall cease
to be Registrable Securities when (x) such securities shall have been disposed
of pursuant to an effective registration statement, (y) such securities shall
have been transferred to any Person other than the Holders pursuant to Rule 144
(or any successor provision) or shall be transferable pursuant to paragraph (k)
thereof (or any successor provision) under the Securities Act, or (z) they shall
have ceased to be held by the Holders or any Affiliate of the Holders or any
Transferee of the Holders or their Affiliates.
(p) REGISTRATION EXPENSES means all expenses incident to the
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performance of or compliance with the registration rights granted herein,
including, without limitation, all registration, filing, listing and NASD fees,
all fees and expenses of complying with securities or blue sky laws, all word
processing, duplicating and printing expenses, messenger and delivery expenses,
the fees and expenses of the Company's counsel and the fees and expenses of the
Company's independent public accountants, including the expenses of any special
audits, should any such special audit be required, or "cold comfort" letters
required by or incident to such performance and compliance, and any fees and
disbursements of underwriters customarily paid by issuers and sellers
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of securities which may be paid by the Company in connection with the
registration of any securities for which the Holders have the right to Piggyback
Registration for the Registrable Securities; provided, however, that
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Registration Expenses shall not include the fees and expenses of the Selling
Holders' counsel, any brokerage or similar commissions or charges or any
underwriting discounts, commissions or transfer taxes, if any, all of which
shall be borne by the Selling Holders.
(q) REMY shall have the meaning set forth in Section 2(c) hereof.
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(r) REMY SHARES shall have the meaning set forth in Section 2(c)
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hereof.
(s) SECURITIES ACT means the Securities Act of 1933, as amended, or
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any successor statute thereto, and the rules and regulations of the Securities
and Exchange Commission promulgated thereunder, all as the same shall be in
effect at the time.
(t) SELLING HOLDERS means those Holders who have requested
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registration pursuant to this agreement and who are selling securities
hereunder.
(u) SHARES means the Company's common stock, as constituted on the
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date hereof, or any stock or other securities, for which such common stock shall
have been exchanged, or any stock or other securities resulting from any
reclassification of such Shares.
(v) TRANSFEREE shall mean the first holder of Registrable Securities
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or Remy Shares by a transfer from a Holder or Remy or an Affiliate of a Holder
or Remy provided, however, that a Person acquiring such Registrable Securities
pursuant to a transfer under an effective registration statement or pursuant to
a sale under Rule 144 shall not be a Transferee.
(w) VIOLATION shall have the meaning set forth in Section 6(a).
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(x) WARRANT AGREEMENT means the Warrant Agreement, dated as of April
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11, 1997 between the Company and the Warrant Holders listed therein.
(y) WARRANTS shall mean any warrants issued pursuant to the Warrant
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Agreement.
(z) WARRANT SHARES shall mean the Shares of Company Common Stock and
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any other securities issuable upon exercise of the Warrants.
2. REGISTRATION RIGHTS.
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(a) Until the Expiration Date, on four occasions, but in no event
during the period ending 90 days following the completion of a registered public
offering of Common Stock by the Company (other than an offering pursuant to an
employee benefit plan or in connection with a merger or acquisition), any Holder
or Holders of Registrable Securities then outstanding (collectively, the
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"Demanding Holders") may request, pursuant to this Section 2(a), that the
Company register under the Securities Act the Registrable Securities pursuant to
a non-underwritten offering having a period of distribution not to exceed 120
days (a "Demand Registration") provided, however, the Company shall not be
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obligated to prepare and file any registration statement pursuant to this
Section 2(a), or prepare or file any amendment or supplement thereto, at any
time when the Company, in the good faith judgment of its Board of Directors,
whose decision shall be conclusive absent manifest error, reasonably believes
that the filing thereof at the time requested, or the offering of securities
pursuant thereto, would materially and adversely affect a pending or proposed
public offering of securities of the Company, an acquisition, merger,
recapitalization, consolidation, reorganization or similar transaction relating
to the Company or its Affiliates or negotiations, discussions or pending
proposals with respect thereto or require premature disclosure of information
not otherwise required to be disclosed to the potential detriment of the Company
or its Affiliates. Notwithstanding anything to the contrary contained in this
Section 2(a), the Company shall be permitted to suspend the period of sale or
distribution of shares of Common Stock subject to a registration pursuant to
this Section 2(a) at any time when the Company reasonably believes that the sale
or distribution thereof at the time requested would materially and adversely
affect a pending or proposed public offering of securities of the Company, an
acquisition, merger, recapitalization, consolidation, reorganization or similar
transaction relating to the Company or its Affiliates or negotiations,
discussions or pending proposals with respect thereto or require premature
disclosure of information not otherwise required to be disclosed to the
potential detriment of the Company or its Affiliates; provided, however, that
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such period of sale or distribution shall resume after any such suspension for a
number of days necessary to keep such registration effective for permitted sales
thereunder for a term of 120 days. The filing of a registration statement, or
any amendment or supplement thereto, by the Company may not be deferred for any
reason whatsoever, and the sale and distribution of shares may not be suspended
for more than 105 days.
(b) If, at any time after the date hereof, the Company proposes to
register under the Securities Act any shares of Common Stock for sale by it
pursuant to an underwritten public offering of the Common Stock (except with
respect to registration statements filed on Form S-4 or such other forms as
shall be prescribed under the Securities Act for the same purposes as such
form), it will at each such time, prior to the filing of any such registration
statement, give written notice to each Holder of Registrable Securities of such
registration (a "Piggyback Registration") regardless of whether the Holder had
previously exercised piggyback registration rights or demand rights as to any
other shares of stock held by it, and, upon the written request given within 5
days following the date of such notice (which must specify the number of shares
of Common Stock to participate in such underwritten offering) of the Holder
delivered to the Company within five days of receipt of the Company's notice,
the Company will use its best efforts to cause any Registrable Securities as to
which registration shall have been so requested to be included in the shares to
be sold pursuant to such underwritten public offering as covered by the
registration statement proposed to be filed by the Company. Nothing contained
in this Section 4(b) shall, however, limit the Company's right to cancel,
postpone or withdraw any such proposed registration for any reason. Any request
by the Holder pursuant to this Section 4(b) to register Registrable Securities
for sale in the underwriting shall be on the same terms and conditions as the
shares of Common Stock to be registered and sold through
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underwriters under such registration; provided, however, that as a condition to
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such inclusion the Holder shall execute an underwriting agreement acceptable to
the underwriters and, if requested, a custody agreement having such customary
terms as the underwriters shall request, including indemnification, and if the
managing underwriter determines and advises in writing that the inclusion in the
underwriting of all Registrable Securities proposed to be included by the Holder
and any other shares of Common Stock sought to be registered by any other
stockholder of the Company exercising rights comparable to those of the Holder
under the Agreement (the "Other Common Stock") would, in its reasonable and good
faith judgment, interfere with the successful marketing of the securities
proposed to be registered for underwriting by the Company then the number of
Registrable Securities and Other Common Stock requested to be included in the
underwriting shall be reduced pro rata (based upon the number of shares
requested to be included in such underwriting) among the Holder and the holders
of Other Common Stock requesting such registration and inclusion in the
underwriting and may, in the determination of such managing underwriter and
consistent with pro rata reduction, be reduced to zero.
(c) REMY PIGGYBACK REGISTRATION. If at any time the Company shall
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contemplate filing a registration statement under the Act in order to register
any shares of the Company's Common Stock beneficially owned by Remy Capital
Partners III L.P. or its successors or assigns or any Transferees of Remy
(collectively, "Remy") for sale in a public offering, the Company shall give to
the Holder not less than thirty days prior written notice of its intentions,
which notice shall specify the number of shares of Common Stock to be registered
pursuant to the contemplated registration statement and the total number of such
shares of Common Stock beneficially owned by Remy to be registered pursuant to
the contemplated registration statement (the "Remy Shares"). The Holders shall
have the right, exercisable by written notice delivered to the Company not later
than the fifteenth day following the date of the Company's notice, to cause the
Company to include in such registration statement up to a number of Warrant
Shares (disregarding fractional shares) determined by multiplying (x) the total
number of Warrant Shares then owned of record by the Holder, and (y) a fraction,
the numerator of which is the number of Remy Shares and the denominator of which
is the number of shares of Common Stock then held of record by Remy. In the
alternative, the Holder may specify any lesser whole number of Warrant Shares
then owned of record by the Holder. The number of the Holder's Warrant Shares
so properly specified is herein referred to as the "Piggyback Shares". The
Company shall include the Piggyback Shares in any registration statement filed
by it which includes the Remy Shares, and shall thereafter use its reasonable
efforts to cause such registration statement to become effective and to remain
effective for the period required to permit the public offering of the Piggyback
Shares, but not longer than 60 days. However, if all or any part of the
proposed registration is to be underwritten (whether on a "best efforts" or
"firm commitment" basis) the managing underwriter shall have the right to
exclude the Piggyback Shares, to the extent the inclusion of such Piggyback
Shares and Remy Shares would, in the written opinion of such managing
underwriter, adversely affect the successful distribution of the underwritten
portion of the public offering, provided such exclusion applies on a
proportional basis not only to Piggyback Shares but also to all other securities
proposed to be included other than those to be issued and sold for the benefit
of the Company pursuant to such registration statement. Any exclusion of
Piggyback Shares
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and other shares shall be made pro rata among all persons other than the Company
whose common stock was to have been included in the offering, including Remy.
(d) REGISTRATION STATEMENT FORM. The Company may, if permitted by
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law, effect any registration requested under Section 2(a) by the filing of a
registration statement on Form S-3 (or any successor or similar short-form
registration statement).
(e) EXPENSES. The Company shall pay all Registration Expenses
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incurred in connection with the registration of Registrable Securities pursuant
to Section 2(a), 2(b) or 2(c) hereunder.
(f) EFFECTIVE REGISTRATION STATEMENT. Any registration effected by
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the Company pursuant to this Agreement shall not be deemed to have been effected
unless it has become effective with the Commission, provided, however, that a
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registration which does not become effective after the Company has filed a
registration statement with respect thereto with the Commission solely by reason
of the Demanding Holders failing to proceed with the registration shall be
deemed to have been effected by the Company in satisfaction of one of the
Company's four demand obligations pursuant to Section 2(a) to register
Registrable Securities pursuant to a Demand Registration. Notwithstanding the
foregoing, a registration statement will not be deemed to have been effected if
after it has become effective with the Commission, such registration is
interfered with by any stop order, injunction or other order or requirement of
the Commission or other governmental agency or any court proceeding for any
reason other than a misrepresentation or omission by the Holders.
(g) CONFLICTING INSTRUCTIONS FROM HOLDERS. The Company may rely and
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shall be protected in relying upon any resolution, certificate, opinion,
request, communication, demand, receipt or other paper or document in good faith
believed by it to be genuine and to have been signed or presented by the proper
party or parties. The Company may act in reliance upon the advice of its
counsel in reference to any matter in connection with this Agreement and shall
not incur any liability for any action taken in good faith in accordance with
such advice.
(i) In the event the Company receives conflicting instructions
regarding any action to be taken or withheld hereunder, the Company may suspend
further action relating to such action until such time as the conflicting
instructions are resolved by the parties giving the same or until the Company is
instructed to take or withhold the requested action by a final order from which
no appeal may be taken issued by a court of competent jurisdiction.
3. REGISTRATION PROCEDURES.
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(a) Whenever the Company is required to effect the registration of any
Registrable Securities under the Securities Act as provided in Section 2, the
Company, as expeditiously as reasonably practicable and subject to the terms and
conditions herein, will use its best efforts to:
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(i) prepare and file with the Commission the requisite
registration statement to effect such registration and use its best efforts to
cause such registration to become effective;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
such time as the Company is so obligated pursuant to this Agreement and to
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such registration statement;
(iii) furnish to the Selling Holders such number of conformed
copies of such registration statement and of each such amendment and supplement
thereto (in each case including all exhibits), such number of copies of the
prospectus contained in such registration statement (including each preliminary
prospectus and any summary prospectus) and any other prospectus filed under the
Securities Act, in conformity with the requirements of the Securities Act, and
such other documents, as the Selling Holders may reasonably request;
(iv) as expeditiously as reasonably practicable, use its best
efforts to register or qualify all Registrable Securities covered by such
registration statement under such other United States state securities or blue
sky laws of such jurisdictions as the Selling Holders shall reasonably request,
to keep such registration statement qualification in effect for so long as such
registration remains in effect, and take any other action which may be
reasonably necessary or advisable to enable the Selling Holders to consummate
the disposition in such jurisdictions of the securities owned by the Selling
Holders, except that the Company shall not for any such purpose be required to
(a) qualify generally to do business as a foreign corporation in any
jurisdiction wherein it would not but for the requirements of this subdivision
(iv) be obligated to be so qualified, (b) subject itself to taxation in any such
jurisdiction or (c) consent to general service of process in any such
jurisdiction;
(v) in any underwritten offering, and if reasonable and customary
in the context of such offering, use its best efforts to furnish to the Selling
Holders a signed counterpart, addressed to the Selling Holders or seller of
Registrable Securities (and the underwriters, if any), of
(x) an opinion of counsel for the Company, dated the effective
date of such registration statement (and, if such registration includes an
underwritten public offering, dated the date of the closing under the
underwriting agreement), reasonably satisfactory to the Selling Holders in
their reasonable judgment, and
(y) if requested, a customary "comfort" letter, dated the
effective date of such registration statement (and, if such registration
includes an underwritten public offering, dated the date of the closing
under the underwriting agreement), signed by the independent public
accountants who have certified the Company's financial statements included
in such registration statement, covering substantially the same matters
with respect to such registration statement (and the prospectus included
therein) and, in the case of the accountants' letter, with respect to
events subsequent to the date of such financial statements,
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as are customarily covered in opinions of issuer's counsel and in
accountants' letters delivered to the underwriters in underwritten public
offerings of securities and, in the case of the accountants' letter, such
other financial matters as such seller or such holder (or the underwriters,
if any) may reasonably request;
(vi) immediately notify the Selling Holders at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event as a result of which the prospectus included
in such registration statement, as then in effect, includes an untrue statement
of a material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading in the light
of the circumstances under which they were made, and at the request of the
Selling Holders promptly prepare and furnish to the Selling Holders a reasonable
number of copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such securities,
such prospectus shall not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances under which
they were made;
(vii) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its security
holders, as soon as reasonably practicable, an earnings statement satisfying the
provisions of Section 11(a) of the Securities Act.
(ix) use its best efforts to list all Registrable Securities
covered by such registration statement on any securities exchange on which any
of the Registrable Securities are then listed.
(x) keep each registration pursuant to Section 2(a) hereof
effective for a period of up to 120 days or such shorter period of time until
the transfer or sale of all Warrant Shares so registered has been completed.
(b) As a condition of these Registration Rights, the Company may
require the Demanding Holders, at their own expense, to furnish the Company with
such information and undertakings regarding such Holders and the distribution of
such securities as the Company may from time to time reasonably request in
writing, and the Holders, by their execution hereof, agree to provide such
information and make such undertakings as are requested.
(c) The Selling Holders agree (A) that upon receipt of any notice from
the Company of the happening of any event of the kind described in subdivision
(vi) of Section 3(a), the Selling Holders will forthwith discontinue their
disposition of Registrable Securities pursuant to the registration statement
relating to such Registrable Securities until the Selling Holders' receipt of
the copies of the supplemented or amended prospectus contemplated by subdivision
(vi) of Section 3(a) and, if so directed by the Company, will deliver to the
Company all copies, other than permanent file copies, then in the Selling
Holders' possession of the prospectus relating to such Registrable Securities
current at the time of receipt of such notice and (B) that they will immediately
notify the Company, at any time when a prospectus relating to the registration
of such Registrable Securities
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is required to be delivered under the Securities Act, of the happening of any
event as a result of which information previously furnished by the Selling
Holders to the Company for inclusion in such prospectus contains an untrue
statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances under which they were made.
(d) Notwithstanding anything in this agreement to the contrary, the
Company will not be required to file such a registration statement if it
receives an opinion of counsel in form and substance reasonably satisfactory to
the Selling Holders, or counsel to the Selling Holders, to the effect that the
sale of the Registrable Securities in the manner contemplated by the Selling
Holders may be effected without registration.
4. UNDERWRITTEN OFFERINGS.
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(a) UNDERWRITTEN OFFERINGS. If requested by the underwriters for any
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underwritten offering by the Selling Holders in connection with any Piggyback
Registration pursuant to Section 2(c), the Selling Holders will enter into an
underwriting agreement with such underwriters for such offering, containing such
terms as are customarily contained in agreements of this type. The Selling
Holders may, at their option (reasonably exercised), require that any or all of
the representations and warranties by, and the other agreements on the part of,
the Company to and for the benefit of such underwriters shall also be made to
and for the benefit of the Selling Holders and that any or all of the conditions
precedent to the obligations of such underwriters under such underwriting
agreement be conditions precedent to the obligations of the Selling Holders.
(b) HOLDBACK AGREEMENTS. (i) Each Holder agrees, if so required by
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the managing underwriter, not to effect any public sale or distribution of
Registrable Securities or sales of such Registrable Securities pursuant to Rule
144 or Rule 144A under the Securities Act, during the seven days prior to and
the 90 days after any firm commitment underwritten registration pursuant to
Section 2(c) has become effective (except as part of such registration), whether
or not the Holder participates in such registration.
5. PREPARATION, REASONABLE INVESTIGATION.
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In connection with the preparation and filing of each registration
statement under the Securities Act, pursuant to this Agreement, the Company will
give the Selling Holders, the underwriters, if any are involved, and their
respective counsel and accountants, the opportunity to participate in the
preparation of such registration statement, each prospectus included therein or
filed with the Commission and each amendment thereof or supplement thereto, and
will give each of them such access to its books and records and such
opportunities to discuss the business of the Company with its officers and the
independent public accountants who have certified its financial statements as
shall be necessary to conduct a reasonable investigation within the meaning of
the Securities Act.
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6. INDEMNIFICATION; CONTRIBUTION. If any Registrable Securities are
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included in a registration statement under this Agreement:
(a) To the extent permitted by applicable law, the Company shall
indemnify and hold harmless each Selling Holder, each Person, if any, who
controls such Selling Holder within the meaning of the Securities Act, and each
officer, director, partner, and employee of such Selling Holder and such
controlling Person, against any and all losses, claims, damages, liabilities and
expenses (joint or several), including reasonable attorneys' fees and
disbursements and expenses of investigation, incurred by such party pursuant to
any actual or threatened action, suit, proceeding or investigation, or to which
any of the foregoing Persons may become subject under the Securities Act, the
Exchange Act or other federal or state laws, insofar as such losses, claims,
damages, liabilities and expenses arise out of or are based upon any of the
following statements, omissions or violations (collectively a "Violation"):
(1) Any untrue statement or alleged untrue statement of a material
fact contained in such registration statement as of the respective date thereof,
including any preliminary prospectus or final prospectus contained therein, or
any amendments or supplements thereto;
(2) The omission or alleged omission to state therein a material fact
required to be stated therein, or necessary to make the statements therein not
misleading; or
(3) Any violation or alleged violation by the Company of the
Securities Act, the Exchange Act, any applicable state securities law or any
rule or regulation promulgated under the Securities Act, the Exchange Act or any
applicable state securities law; provided, however, that the indemnification
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required by this Section 6(a) shall not apply to amounts paid in settlement of
any such loss, claim, damage, liability or expense if such settlement is
effected without the consent of the Company (which consent shall not be
unreasonably withheld), nor shall the Company be liable under this Section 6(a)
in any such case for any such loss, claim, damage, liability or expense to the
extent that it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information furnished to the
Company by the indemnified party expressly for use in connection with such
registration; provided, further, that the indemnity agreement contained in this
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Section 6 shall not apply to any Holder to the extent that any such loss is
based on or arises out of an untrue statement or alleged untrue statement of a
material fact, or an omission or alleged omission to state a material fact,
contained in or omitted from any preliminary prospectus if the final prospectus
shall correct such untrue statement or alleged untrue statement, or such
omission or alleged omission, and a copy of the final prospectus has not been
sent or given to such person at or prior to the confirmation of sale to such
person if such Holder was under an obligation to deliver such final prospectus
and failed to do so. The Company shall also indemnify any underwriters
participating in a Piggyback Registration in which the Selling Holders are
participating.
(b) To the extent permitted by applicable law, each Selling Holder
shall indemnify and hold harmless the Company, each of its directors, each of
its officers who shall have signed the registration statement, each Person, if
any, who controls the Company within the meaning of the
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Securities Act, any other Selling Holder, any controlling Person of any such
other Selling Holder; each officer, director, partner, and employee of such
other Selling Holder and such controlling Person and each underwriter to the
extent that such Selling Holder participates in an underwritten registration,
against any and all losses, claims, damages, liabilities and expenses (joint and
several), including reasonable attorneys' fees and disbursements and expenses of
investigation, incurred by such party pursuant to any actual or threatened
action, suit, proceeding or investigation, or to which any of the foregoing
Persons may otherwise become subject under the Securities Act, the Exchange Act
or other federal or state laws, insofar as such losses, claims, damages,
liabilities and expenses arise out of or are based upon any Violation, in each
case to the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with written information furnished by such
Selling Holder expressly for use in connection with such registration; provided,
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however, that (x) the indemnification required by this Section 6(b) shall not
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apply to amounts paid in settlement of any such loss, claim, damage, liability
or expense if settlement is effected without the consent of the relevant Selling
Holder of Registrable Securities, which consent shall not be unreasonably
withheld, and (y) in no event shall the amount of any indemnity under this
Section 6(b) exceed the gross proceeds from the applicable offering received by
such Selling Holder.
(c) Promptly after receipt by an indemnified party under this Section
6 of notice of the commencement of any action, suit, proceeding, investigation
or threat thereof made in writing for which such indemnified party may make a
claim under this Section 6, such indemnified party shall deliver to the
indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
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have the right to retain its own counsel at its own expense except as provided
below. The failure to deliver written notice to the indemnifying party within a
reasonable time following the commencement of any such action, if prejudicial to
its ability to defend such action, shall relieve such indemnifying party of any
liability to the indemnified party under this Section 6 but shall not relieve
the indemnifying party of any liability that it may have to any indemnified
party otherwise than pursuant to this Section 6. Any such indemnified party
shall have the right to employ separate counsel in any such action, claim or
proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be the expenses of such indemnified party unless (i) the
indemnifying party has agreed to pay such fees and expenses or (ii) the
indemnifying party shall have failed to promptly assume the defense of such
action, claim or proceeding or (iii) the named parties to any such action, claim
or proceeding (including any impleaded parties) include both such indemnified
party and the indemnifying party, and such indemnified party shall have been
advised by counsel that it has reasonably determined that there may be one or
more legal defenses available to it which are different from or in addition to
those available to the indemnifying party and that the assertion of such
defenses would create a conflict of interest such that counsel employed by the
indemnifying party could not faithfully represent the indemnified party (in
which case, if such indemnified party notifies the indemnifying party in writing
that it elects to employ separate counsel at the expense of the indemnifying
party, the indemnifying party shall not have the right to assume the defense of
such action, claim or proceeding on behalf of such indemnified party, it being
understood, however, that the indemnifying party shall not, in
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connection with any one such action, claim or proceeding or separate but
substantially similar or related actions, claims or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys (together with appropriate local counsel) at any time for all such
indemnified parties. No indemnifying party shall be liable to an indemnified
party for any settlement of any action, proceeding or claim without the written
consent of the indemnifying party which consent shall not be unreasonably
withheld.
(d) If the indemnification required by this Section 6 from the
indemnifying party is unavailable to an indemnified party hereunder in respect
of any losses, claims, damages, liabilities or expenses referred to in this
Section 6:
(i) The indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative fault of
the indemnifying party and indemnified parties in connection with the actions
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified parties shall be determined by reference to,
among other things, whether any Violation has been committed by, or relates to
information supplied by, such indemnifying party or indemnified parties, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such Violation. The amount paid or payable by a party as a
result of the losses, claims, damages, liabilities and expenses referred to
above shall be deemed to include, subject to the limitations set forth in
Section 6(a) and Section 6(b), any legal or other fees or expenses reasonably
incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 6(d) were determined by pro
rata allocation or by any other method of allocation which does not take into
account the equitable considerations referred to in Section 6(d)(i). No Person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.
(e) If indemnification is available under this Section 6, the
indemnifying parties shall indemnify each indemnified party to the full extent
provided in this Section 6 without regard to the relative fault of such
indemnifying party or indemnified party or any other equitable consideration
referred to in Section 6(d); provided, however, that if it is determined by a
final and non-appealable order of a court of competent jurisdiction that a party
receiving indemnification hereunder was not entitled to receive such
indemnification, the additional cost, if any, to the indemnifying party of such
indemnification shall be promptly reimbursed by such improperly indemnified
party to such indemnifying party.
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(f) The obligations of the Company and the Selling Holders of
Registrable Securities under this Section 6 shall survive the completion of any
offering of Registrable Securities pursuant to a registration statement under
this Agreement, and otherwise.
7. COVENANTS OF THE COMPANY. The Company hereby agrees and covenants as
------------------------
follows:
The Company shall file as and when applicable, on a timely basis, all
reports required to be filed by it under the Exchange Act. If the Company is
not required to file reports pursuant to the Exchange Act, upon the request of
any Holder of Registrable Securities, the Company shall make publicly available
the information specified in subparagraph (c)(2) of Rule 144 of the Securities
Act, and take such further action as may be reasonably required from time to
time and as may be within the reasonable control of the Company, to enable the
Holders to transfer Registrable Securities to a Transferee without registration
under the Securities Act within the limitation of the exemptions provided by
Rule 144 under the Securities Act or any similar rule or regulation hereafter
adopted by the Commission.
8. MISCELLANEOUS.
-------------
(a) SPECIFIC PERFORMANCE. The parties hereto acknowledge that there
--------------------
may be no adequate remedy at law if any party fails to perform any of its
obligations hereunder and that each party may be irreparably harmed by any such
failure, and accordingly agree that each party, in addition to any other remedy
to which it may be entitled at law or in equity, may be entitled to compel
specific performance of the obligations of any other party under this Agreement
in accordance with the terms and conditions of this Agreement.
(b) NOTICES. All notices, requests, claims, demands, waivers and
-------
other communications required or permitted hereunder shall be in writing and
shall be deemed to have been duly given when delivered by hand, if delivered
personally by courier, or three days after being deposited in the mail
(registered or certified mail, postage prepaid, return receipt requested) as
follows:
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The Holders at the addresses indicated on the signature page
hereof with a copy to Canpartners Investments IV, LLC
c/o Canyon Partners Incorporated
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Attn: Xxxxx Xxxxxx, Telecopy No. (000) 000-0000
Company:
UTI Energy Corp.
000 Xxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxx, XX 00000
or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
(c) LAW GOVERNING. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
-------------
IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT GIVING EFFECT TO
PRINCIPLES OF CONFLICT OF LAWS.
(d) ATTORNEYS' FEES. In any action or proceeding brought to enforce
---------------
any provision of this Agreement, or where any provision hereof is validly
asserted as a defense, the successful party shall be entitled to recover
reasonable attorneys' fees (including any fees incurred in any appeal) in
addition to its costs and expenses and any other available remedy.
(e) HEADINGS. The descriptive headings of the several Sections and
--------
paragraphs of this Agreement are inserted for convenience only, and do not
constitute a part of this Agreement and shall not affect in any way the meaning
or interpretation of this Agreement.
(f) ENTIRE AGREEMENT; AMENDMENTS. This Agreement and the other
----------------------------
writings referred to herein or delivered pursuant hereto which form a part
hereof contain the entire understanding of the parties with respect to its
subject matter. This Agreement supersedes all prior agreements and
understandings between the parties with respect to its subject matter. This
Agreement may be amended and the observance of any term of this Agreement may be
waived (either generally or in a particular instance and either retroactively or
prospectively) only by a written instrument duly executed by the Company and the
Holders. Each holder of any Registrable Securities at the time or thereafter
outstanding shall be bound by an amendment or waiver authorized by this Section
8.6, whether or not any such Registrable Securities shall have been marked to
indicate such consent.
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(g) ASSIGNABILITY. This Agreement shall be binding upon and inure to
-------------
the benefit of the respective successors and assigns of the parties hereto
provided, however, that the Registration Rights hereunder shall only be
available to the Holders, their Affiliates and to their Transferees.
(h) 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.
(i) VALIDITY, DUE AUTHORIZATION. By its execution hereof, the Company
---------------------------
represents and warrants that it has the corporate power to execute, deliver and
perform the terms and provisions of this Agreement and that it has taken all
appropriate and necessary corporate action to authorize the transactions
contemplated hereby and the execution, delivery and performance of this
Agreement.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed as
of the day, month and year first above written.
UTI Energy Corp.
By: ____________________________
Name:
Title:
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Canpartners Investments IV, LLC,
a California limited liability company
By: Canpartners Incorporated,
a California corporation,
its managing member
By: ________________________
Name:
Title:
c/o Canyon Partners Incorporated
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
310/247-2700 (O)
310/247-2701 (F)
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