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EXHIBIT 7
AMENDED AND RESTATED REPRICED 96 PLAN
STOCK OPTION AGREEMENT
1996 EMPLOYEE STOCK OPTION PLAN
THIS AMENDED AND RESTATED STOCK OPTION AGREEMENT (this "Agreement") is
effective as of July 27, 1997, between UTI Energy Corp., a Delaware corporation
("UTI"), and Xxxx X. Xxxxxx (the "Employee").
W I T N E S S E T H :
WHEREAS, UTI has adopted the UTI Energy Corp. Amended and Restated 1996
Employee Stock Option Plan (the "Plan"); and
WHEREAS, the Employee is currently an employee of UTI, and UTI desires
to encourage the Employee to remain in UTI's service and, as an inducement
thereto, has determined to grant to the Employee pursuant to the Plan the option
provided for herein; and
WHEREAS, on July 27, 1997, UTI granted the Employee an option (the
"July Option") to purchase 45,000 shares of UTI's common stock, $.001 par value
("Common Stock") at $60 per share, which would have expired on July 27, 2002;
and
WHEREAS, on August 12, 1998, UTI's Board of Directors approved the
repricing and reduction of the exercise price contained in the July Option; and
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, UTI and the Employee
hereby agree to amend and restate the July Option in its entirety as follows:
1. Grant. (a) Effective as of July 27, 1997 (the "Date of Grant"), UTI
hereby grants to the Employee pursuant to the terms and conditions of the Plan
an option (the "Option") to purchase 135,000 shares of Common Stock (reflects 3
for 1 stock split) at a price of $9.875 per share (the "Option Price"). The
Option shall be for a term commencing on August 12, 1998 and ending on July 27,
2002 (unless such Option terminates earlier as provided in this Agreement or as
set forth under the terms of the Plan). The Option is subject to the terms and
provisions of the Plan, which are hereby incorporated herein by reference and
the terms and provisions of this Agreement. The Option shall be a Non-Statutory
Option (as defined in the Plan). The Option shall vest and be exercisable as
follows:
(a) On August 12, 1999, the Option shall be vested and become
exercisable with respect to up to all 135,000 shares subject to the
Option; and
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(b) notwithstanding any other provision of this Agreement,
this Option, when exercised, to the extent exercisable must be
exercised in full or in installments of not less than 200 shares of
stock (adjusted proportionately to any adjustments described in Section
2(b) of this Agreement). In addition, this option can be exercised only
in whole shares and no fractional shares will be issued.
2. Changes in UTI's Capital Structure. (a) The existence of the Option
shall not affect in any way the right or power of UTI or its stockholders to
make or authorize any or all adjustments, recapitalizations, reorganizations or
other changes in UTI's capital structure or its business, or any merger or
consolidation of UTI, or any issue of bonds, debentures or preferred or prior
preference stock ahead of or affecting the Common Stock or the rights thereof,
or the dissolution or liquidation of UTI, or any sale or transfer of all or any
part of its assets or business, or any other corporate act or proceeding,
whether of a similar character or otherwise.
(b) The number of shares of Common Stock subject to the Option, the
Option Price and the securities issuable and other property payable upon
exercise of the Option shall be subject to adjustment as provided in the Plan.
3. Change of Control. Notwithstanding the vesting schedule set forth in
Section 1 of this Agreement, all unvested Options will immediately vest and
become immediately exercisable upon a Change of Control as defined below.
Furthermore, notwithstanding Section 7 (a)-(d) of this Agreement, such Options
will remain exercisable for three years following the Employee's termination of
employment following a Change of Control (but not beyond July 27, 2002) for any
reason other than a termination of employment for dishonesty (as determined by
the Committee), conviction of a felony, willful unauthorized disclosure of
confidential information (as determined by the Committee), or willful refusal to
perform the duties of such Employee's position (as determined by the Committee),
in which event such Option shall terminate one day less than three months
following the Employee's termination of employment. A "Change of Control" shall
be deemed to have occurred if:
(1) any Person (as defined below), other than a Designated Person, is
or becomes the Beneficial Owner (as defined below) of securities of the company
representing 35% or more of the Voting Power (as defined below);
(2) there shall occur a change in the composition of a majority of the
Board of Directors within any period of four consecutive years which change
shall not have been approved by a majority of the Board of Directors as
constituted immediately prior to the commencement of such period;
(3) at any meeting of the stockholders of the Company called for the
purpose of electing directors, more than one of the persons nominated by the
Board of Directors for election as directors shall fail to be elected; or
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(4) the stockholders of the Company approve a merger, consolidation,
sale of substantially all assets or other reorganization of the Company, other
than a reincorporation, in which the company does not survive.
For purposes of this Section 3, (i) "Person" shall have the meaning set
forth in Sections 3(a)(9) and 13(d)(3) of the Securities Exchange Act of 1934
(the "Exchange Act"), as in effect on May 1, 1997, (ii) "Beneficial Owner" shall
have the meaning set forth in Rules 13d-3 and 13d-5 promulgated under the
Exchange Act on May 1, 1997; (iii) "Voting Power" shall mean the voting power of
the outstanding securities of the company having the right under ordinary
circumstances to vote at an election of the Board of Directors; and (iv)
"Designated Person" shall mean any Person whose Beneficial Ownership of
securities is solely the result of such Person acquiring securities as an
underwriter in an underwritten public offering of such securities.
Notwithstanding anything contained herein to the contrary, a Change in Control
shall not be deemed to have occurred due to the Voting Power of Remy Capital
partners III, L.P. or any of its affiliates (collectively "Remy") falling below
35% or subsequently increasing over 35%.
4. Exercise of Options. The Option may be exercised from time to time
as to the total number of shares that may then be issuable upon the exercise
thereof or any portion thereof in the manner and subject to the limitations
provided for in the Plan.
5. Assignment. The Option may not be transferred or assigned in any
manner by the Employee except by will or the laws of descent and distribution,
and shall be exercisable during the Employee's lifetime only by him or her.
6. Requirements of Law. UTI shall not be required to sell or issue any
shares on the exercise of the Option if the issuance of such shares shall
constitute a violation by the Employee or UTI of any provisions of any law or
regulation of any governmental authority. The Option shall be subject to the
requirements that, if at any time the Board of Directors of UTI or the committee
of the Board of Directors of UTI administering the Plan (the "Committee") shall
determine that the listing, registration or qualification of the shares subject
thereto upon any securities exchange or under any state or federal law of the
United States or of any other country or governmental subdivision thereof, or
the consent or approval of any governmental regulatory body, or investment or
other representations, are necessary or desirable in connection with the issue
or purchase of shares subject thereto, the Option may not be exercised in whole
or in part unless such listing, registration, qualification, consent, approval
or representation shall have been effected or obtained free of any conditions
not acceptable to the Board of Directors. If required at any time by the Board
of Directors or the Committee, the Option may not be exercised until the
Employee has delivered an investment letter to UTI. In addition, specifically in
connection with the Securities Act of 1933 (as now in effect or hereafter
amended), upon exercise of the Option, UTI shall not be required to issue the
underlying shares unless the Committee has received evidence satisfactory to it
to the effect that the Employee will not transfer such shares except pursuant to
a registration statement in effect under such Act or unless an opinion of
counsel satisfactory to the Committee has been received by UTI to the effect
that such registration is not required. Any determination in this connection by
the Committee shall be final, binding and conclusive. In the event the shares
issuable on exercise of the Option are not registered under the Securities Act
of 1933, UTI may imprint on the certificate for such shares the
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following legend or any other legend that counsel for UTI considers necessary or
advisable to comply with Securities Act of 1933:
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER THE
SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT
UPON SUCH REGISTRATION OR UPON RECEIPT BY THE CORPORATION OF AN OPINION
OF COUNSEL SATISFACTORY TO THE CORPORATION, IN FORM AND SUBSTANCE
SATISFACTORY TO THE CORPORATION, THAT REGISTRATION IS NOT REQUIRED FOR
SUCH SALE OR TRANSFER.
UTI may, but shall in no event be obligated to, register any securities
covered hereby pursuant to the Securities Act of 1933. UTI shall not be
obligated to take any other affirmative action to cause the exercise of the
Option or the issuance of shares of Common Stock pursuant thereto to comply with
any law or regulation of any governmental authority.
7. Termination. The Option, to the extent it shall not previously have
been exercised, shall terminate on the earlier of the following unless the
Committee extends the term of this Option to a period not extending beyond July
27, 2002:
(a) One day less than three months after the date of the
severance, upon severance of the employment relationship between UTI
and the Employee, whether with or without cause, for any reason other
than the death, disability or retirement of the Employee, during which
period the Employee or, if the Employee should die within such three
month period, the Employee's executor or administrator or the person or
persons to whom the Option shall be transferred by the Employee's will
or the laws of descent and distribution, shall be entitled to exercise
the Option in respect of the number of shares that the Employee would
have been entitled to purchase had the Employee exercised the Option on
the date of such severance of employment;
(b) On the last day within the one year period commencing on
the date on which the Employee ceases to be in the employment of UTI
because of disability, during which period the Employee or, if the
Employee should die within such one year period, the Employee's
executor or administrator or the person or persons to whom the Option
shall be transferred by the Employee's will or the laws of descent and
distribution, shall be entitled to exercise the Option in respect to
the number of shares that the Employee would have been entitled to
purchase had the Employee exercised the Option on the date of severance
because of disability;
(c) On the last day within the one year period commencing on
the date of the Employee's death while in the employment of UTI, during
which period the executor, administrator or any person or persons to
whom the Option shall have been transferred by the Employee's will or
the laws of descent and distribution shall be entitled to exercise the
Option in respect of the number of shares that the Employee would have
been entitled to purchase had the Employee been alive on such date;
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(d) On the last day within the one year period commencing on
the date on which the Employee retires in accordance with provisions of
UTI's then existing policies regarding retirement as applied by the
Committee, during which period the Employee or, if the Employee should
die within such one year period, the Employee's executor or
administrator or the person or persons to whom the Option shall have
been transferred by the Employee's will or the laws of descent and
distribution shall be entitled to exercise the Option in respect of the
number of shares that the Employee would have been entitled to purchase
as of the date of such retirement; and
(e) On July 27, 2002.
8. Amendment. This Agreement may not be changed, amended or modified
except by an agreement in writing signed on behalf of each of the parties
hereto.
9. No Rights as a Stockholder. The Employee shall not have any rights
as a stockholder with respect to any shares of Common Stock issuable upon the
exercise of the Option until the date of issuance of the stock certificate or
certificates representing such shares following the Employee's exercise of the
Option pursuant to its terms and conditions and payment for such shares. Except
as otherwise provided in the Plan, no adjustment shall be made for dividends or
other distributions made with respect to the Common Stock the record date for
the payment of which is prior to the date of issuance of the stock certificate
or certificates representing such shares following the Employee's exercise of
the Option.
10. Governing Law. The validity, construction and performance of this
Agreement shall be governed by the laws of the State of Texas. Any invalidity of
any provision of this Agreement shall not affect the validity of any other
provision.
11. Notices. All notices, demands, requests or other communications
hereunder shall be in writing and shall be deemed to have been duly made or
given if mailed by registered or certified mail, return receipt requested. Any
such notice mailed to UTI shall be addressed to its principal executive office
at 00000 Xxxxxxxxxxx Xxxx, Xxxxx 000X, Xxxxxxx, Xxxxx 00000 (attention:
President), and any notice mailed to the Employee shall be addressed to the
Employee's residence address as it appears on the books and records of UTI or to
such other address as either party may hereafter designate in writing to the
other.
12. Employment Obligation. The granting of the Option by UTI to the
Employee shall not impose upon UTI any obligation to employ or continue to
employ the Employee; and the right of UTI to terminate the employment of the
Employee with UTI shall not be diminished or affected by reason of the grant of
the Option to the Employee pursuant to this Agreement.
13. Binding Effect. This Agreement shall, except as otherwise provided
to the contrary in this Agreement or in the Plan, inure to the benefit of and
bind the successors and assigns of UTI. This Agreement shall, except as
otherwise provided to the contrary in this Agreement or in the Plan, inure to
the benefit of and bind the heirs, executors, administrators and legal
representatives of the Employee.
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14. Plan Controls. This Agreement is subject in all respects to the
terms and conditions of the Plan, which are deemed incorporated by reference
herein. In the event any terms of this Agreement contradict or are inconsistent
with the terms of the Plan, the terms of the Plan shall control.
[SIGNATURES BEGIN ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
as of the day and year first above mentioned.
UTI ENERGY CORP.
By:
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Xxxx X. Xxxxxxx III
Chief Financial Officer
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Xxxx X. Xxxxxx
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