EXHIBIT 2
STOCK PURCHASE AGREEMENT
By and Between
▇▇▇▇▇▇▇▇▇-UTI ENERGY, INC.
as Purchaser
and
J. ▇▇▇▇ ▇▇▇▇▇
as Seller
Dated as of October 28, 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.......................................................................1
2.1 Representations and Warranties.................................................................1
2.2 Purchase Permitted by Applicable Laws..........................................................2
2.3 Compliance with Securities Laws................................................................2
2.4 No Adverse Action or Decision..................................................................2
2.5 No Shareholders Rights Plan; No Reduction in Outstanding Stock.................................2
3. Seller's Conditions of Closing..........................................................................2
3.1 Representations and Warranties.................................................................2
3.2 Purchase Permitted by Applicable Laws..........................................................2
3.3 Purchase of Securities.........................................................................2
3.4 No Adverse Action or Decision..................................................................2
3.5 Compliance with Securities Laws................................................................3
4. Other Agreements........................................................................................3
4.1 No Change in Purchase Price....................................................................3
4.2 Consent to Transfer............................................................................3
5. Representations and Warranties of Seller................................................................3
5.1 Title to Securities............................................................................3
5.2 Authority; Binding Agreement...................................................................3
5.3 No Adverse Action or Decision..................................................................4
5.4 No Rights Plan; No Reduction in Outstanding Stock..............................................4
5.5 No Other Representations and Warranties........................................................4
6. Representations and Warranties of Purchaser.............................................................4
6.1 Purchase for Investment........................................................................4
6.2 Power and Authority; Binding Obligation........................................................5
6.3 No Adverse Action or Decision..................................................................5
6.4 No Other Representations or Warranties.........................................................6
7. Termination, Amendment and Waiver.......................................................................6
7.1 Termination....................................................................................6
7.2 Effect of Termination..........................................................................6
8. Miscellaneous...........................................................................................7
8.1 Amendment......................................................................................7
8.2 Extension; Waiver..............................................................................7
8.3 Assignment.....................................................................................7
8.4 Survival of Representations and Warranties.....................................................7
8.5 Successors and Assigns; No Third Party.........................................................7
8.6 Notices........................................................................................7
8.7 Descriptive Headings...........................................................................8
8.8 Governing Law; Consent to Jurisdiction.........................................................8
8.9 Remedies.......................................................................................9
8.10 Entire Agreement...............................................................................9
8.11 Severability...................................................................................9
8.12 Counterparts...................................................................................9
8.13 Brokerage......................................................................................9
8.14 Attorneys' Fees................................................................................9
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STOCK PURCHASE AGREEMENT
This
STOCK PURCHASE AGREEMENT (this "Agreement") is made as of October
28, 2002, by and between ▇▇▇▇▇▇▇▇▇-UTI Energy, Inc., a Delaware corporation (the
"Purchaser"), and J. ▇▇▇▇ ▇▇▇▇▇ (the "Seller").
RECITALS
WHEREAS, the Purchaser desires to purchase from the Seller, and the
Seller desires to sell to the Purchaser, subject to the terms and conditions set
forth herein, 101,076 shares of common stock, $.10 par value per share ("Common
Stock"), of TMBR/Sharp Drilling, Inc., a
Texas corporation (the "Company");
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 Seller agrees to sell to the Purchaser
and the Purchaser agrees to purchase from the Seller, 101,076 shares of
Common Stock (the "Securities"), for $16.60 per share, or an aggregate
cash purchase price of $1,677,861.60 (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 October 29, 2002, 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 Seller will deliver
to the Purchaser (i) an original certificate or certificates evidencing
the Securities which are certificated and held of record by the Seller,
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 Seller, irrevocable instructions to such broker to transfer such
Securities to the Purchaser, together with appropriate stock powers, if
any, against (b) receipt of the purchase price therefor by the Seller
by wire transfer of immediately available funds to an account or
accounts designated by the Seller 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 Seller.
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 Section 5 hereof shall be true and correct on
and as of the
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Closing Date, and the Seller shall have delivered to the Purchaser a
certificate to such effect.
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 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.
2.4 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 transaction contemplated by this Agreement or (b)
questions the validity or legality of such transaction or seeks to
recover damages or to obtain other relief in connection with such
transaction.
2.5 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"), and Purchaser shall
have received a letter from the Company, dated as of the Closing Date,
confirming that no such plan has been adopted, which plan would have
the effect of diluting the value of the 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.
3. SELLER'S CONDITIONS OF CLOSING. The Seller's 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 6 hereof shall be true and correct on
and as of the Closing Date; and the Purchaser shall have delivered to
the Seller 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 Seller's actual
knowledge, threatened, against or affecting the Seller or the Company
or any of their
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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
transaction contemplated by this Agreement or (b) questions the
validity or legality of such transaction or seeks to recover damages or
to obtain other relief in connection with 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 No Change in Purchase Price. The Seller acknowledges and
agrees 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, the Purchase Price shall not change.
4.2 Consent to Transfer. Execution of this Agreement by the
Purchaser shall evidence its consent to the transfer of the ▇▇▇▇▇ Proxy
Shares (as such term is defined in the
Stock Purchase Agreement, dated
as of June 11, 2002, by and among the Purchaser, ▇▇▇▇▇ Family
Properties, Ltd., Estate of ▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and the Seller, in his
individual capacity for purposes of Sections 2.4, 4.3(b), 6 and 9 of
such agreement (the "June 2002 Agreement")) under Section 6.3 of the
June 2002 Agreement.
5. REPRESENTATIONS AND WARRANTIES OF SELLER. The Seller
represents and warrants to the Purchaser as of the date hereof and as of the
Closing Date that:
5.1 Title to Securities. The Seller represents and warrants to
the Purchaser that he is the record holder of the Securities (other
than those Securities which are held beneficially for his account by
brokerage firms), that he owns the Securities 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 6.1 of this Agreement), priority or
other preferential arrangement of any kind or nature whatsoever thereon
or affecting the title thereto, that he has owned such shares for at
least two years and has not been an officer or director of the Company
during that time. The Seller represents and warrants to the Purchaser
that the Securities are the only shares of Common Stock that he owns,
except for 1,000 shares of Common Stock held in trust for Seller's
minor children.
5.2 Authority; Binding Agreement. The Seller 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 Securities 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
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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).
5.3 No Adverse Action or Decision. To the current actual
knowledge of the Seller, there is no action, suit, investigation or
proceeding pending or threatened against or affecting the Seller 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 transaction
contemplated by this Agreement or (b) questions the validity or
legality of such transaction or seeks to recover damages or to obtain
other relief in connection with such transaction.
5.4 No Rights Plan; No Reduction in Outstanding Stock. The
Seller 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.
5.5 No Other Representations and Warranties. Except as set
forth in this Agreement, the Seller makes no other representations or
warranties to the Purchaser.
6. REPRESENTATIONS AND WARRANTIES OF PURCHASER. The Purchaser
represents and warrants to the Seller that:
6.1 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 offer and
sale of the Securities hereunder 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 its
investment.
(d) The Purchaser acknowledges that, to the extent
that any of the Securities are "restricted securities" as that
term is defined in the rules promulgated under the Securities
Act,
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such 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
such Securities or an available exemption from registration
under the Securities Act, such Securities must be held
indefinitely.
(e) The Purchaser agrees that, to the extent that any
of the Securities are "restricted securities" as that term is
defined in the rules promulgated under the Securities Act,
such Securities shall bear legends in substantially the
following form or such other form as may be required by
applicable law:
"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."
6.2 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).
6.3 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
transaction contemplated by this Agreement or (b) questions the
validity or legality of such transaction or seeks to recover damages or
to obtain other relief in connection with such transaction.
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6.4 No Other Representations or Warranties. Except as set
forth in this Agreement, the Purchaser makes no other representations
or warranties to the Seller.
7. TERMINATION, AMENDMENT AND WAIVER.
7.1 Termination. This Agreement may be terminated at any time
prior to the Closing Date:
(a) by mutual written consent of the Purchaser and
the Seller;
(b) by either the Purchaser or the Seller;
(i) if the Closing shall not have occurred on or before
November 4, 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; or
(ii) if any permanent injunction or other order of a court
or other competent authority preventing the
consummation of the transaction contemplated by this
Agreement shall have become final and nonappealable.
(c) by the Purchaser, if the Seller breaches any of
his representations or warranties herein or fails to perform
in any material respect any of his covenants, agreements or
obligations under this Agreement;
(d) by the Seller, 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 Seller, by written notice to the
Purchaser, if the Closing has not occurred because the
condition set forth in Section 2.4 has not been satisfied as a
result of the Purchaser being aware of an oral threat as set
forth in Section 2.4 and such oral threat is not made in
writing within seven days after the Purchaser first became
aware of such oral threat.
7.2 Effect of Termination. In the event of termination of this
Agreement by either the Seller 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 Seller.
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8. MISCELLANEOUS.
8.1 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.
8.2 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 party, (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 party 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.
8.3 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 8.3, 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.
8.4 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.
8.5 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.
8.6 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:
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▇▇▇▇▇▇▇▇▇-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 Seller, to:
J. ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: 512/306-1615
Confirmation No.: 512/342-8811
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.
8.7 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.
8.8 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. Each of the Purchaser and the
Seller irrevocably consents to the service of
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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 effective 30 days after such mailing. Nothing herein shall
affect the right of the Seller or the Purchaser to serve process in any
other manner permitted by law.
8.9 Remedies. In case any one or more of the covenants or
agreements set forth in this Agreement shall have been breached by the
Seller or the Purchaser, the Seller or the Purchaser, as applicable,
may proceed to protect and enforce his or its rights either by suit in
equity or by action at law or both, including, without limitation,
specific performance.
8.10 Entire Agreement. This Agreement and the other writings
referred to herein or delivered pursuant hereto contain the entire
agreement between the parties with respect to the subject matter hereof
and supersede all prior and contemporaneous arrangements or
understandings with respect thereto.
8.11 Severability. Any provision 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.
8.12 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.
8.13 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 transaction
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.
8.14 Attorneys' Fees. Each party shall be responsible for his
or its own attorneys' fees with respect to (a) the negotiation and
preparation of this Agreement and the consummation of the transaction
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.
SELLER
----------------------------------------------
J. ▇▇▇▇ ▇▇▇▇▇
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PURCHASER
▇▇▇▇▇▇▇▇▇-UTI Energy, Inc.
By:
-----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
Title: Senior Vice President
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