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STOCK PURCHASE AGREEMENT
By and Between
▇▇▇▇▇▇▇▇▇-UTI Energy, Inc.
as Purchaser
and
J. ▇▇▇▇ ▇▇▇▇▇
as Seller
Dated as of October 28, 2002
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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 3
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 5
6.2 Power and Authority; Binding Obligation 5
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6.3 No Adverse Action or Decision 5
6.4 No Other Representations or Warranties 5
7. Termination, Amendment and Waiver 5
7.1 Termination 5
7.2 Effect of Termination 6
8. Miscellaneous 6
8.1 Amendment 6
8.2 Extension; Waiver 6
8.3 Assignment 6
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 8
8.10 Entire Agreement 8
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 Closing Date, and the Seller shall have delivered to the
Purchaser a certificate to such effect.
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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 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.
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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 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).
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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, 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.
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(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 process out of any of the aforementioned
courts in any such action or proceeding by the mailing of copies
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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
/s/ J. ▇▇▇▇ ▇▇▇▇▇
-----------------
J. ▇▇▇▇ ▇▇▇▇▇
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Purchaser
▇▇▇▇▇▇▇▇▇-UTI Energy, Inc.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
Title: Senior Vice President
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