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EXHIBIT 4.2
CERTIFICATE OF DESIGNATION, POWERS,
PREFERENCES AND RIGHTS
of
SERIES I PREFERRED STOCK
of
UTI ENERGY CORP.
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
The undersigned, John E. Vollmer, the Chief Financial Officer
and Corporate Secretary of UTI Energy Corp., a Delaware corporation (the
"Company"), hereby certifies that pursuant to authority granted to and vested in
the Board of Directors of the Company by the provisions of the Restated
Certificate of Incorporation of the Company, the Board of Directors of the
Company has duly adopted the following resolutions creating a series of
Preferred Stock designated as the Series I Preferred Stock:
"RESOLVED, that pursuant to Article Fourth of the Restated
Certificate of Incorporation, as amended, of UTI Energy Corp., a Delaware
corporation (the "Corporation"), which (a) authorizes the Corporation to issue
5,000,000 shares of Preferred Stock, par value $.01 per share ("Preferred
Stock"), none of which are issued and outstanding at the date hereof, and (b)
expressly vests in the Board of Directors of the Corporation (the "Board"),
subject to the limitations prescribed by law and the provisions of said Article
Fourth, the authority to provide by resolution or resolutions for the issuance
of shares of Preferred Stock in series and, by filing a certificate pursuant to
the General Corporation Law of the State of Delaware, to establish from time to
time the number of shares to be included in each of such series and to fix the
designation, powers, preferences and rights of the shares of each of such
series, or of particular holders thereof, the Board hereby fixes the powers,
preferences and rights of the shares of a series of Preferred Stock and the
qualifications, limitations and restrictions thereof, as follows:
Section 1. Designation and Amount. The shares of such series
shall be designated "Series I Preferred Stock", and the number of shares
constituting the Series I Preferred Stock shall initially be 50,000. The number
of shares of Series I Preferred Stock may be increased or decreased from time to
time by resolution of the Board, provided that no such decrease shall reduce the
number of shares of Series I Preferred Stock to less than the sum of (a) the
number of shares of Series I Preferred Stock then outstanding, (b) the number of
shares of Series I Preferred Stock that the Corporation is obligated to issue
upon the exercise of then outstanding rights, options or warrants
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and (c) the number of shares of Series I Preferred Stock that the Corporation is
obligated to issue upon the conversion of then outstanding convertible
securities.
Section 2. Dividends and Distributions.
(a) Subject to the rights of holders of shares of any series
of Preferred Stock that ranks prior to the Series I Preferred Stock with respect
to dividends, the holders of shares of Series I Preferred Stock, in preference
to the rights of holders of shares of Common Stock, par value $.001 per share
("Common Stock"), of the Corporation with respect to dividends, and in
preference to the rights of holders of shares of any series of Preferred Stock
that ranks junior to the Series I Preferred Stock with respect to dividends,
shall be entitled to receive, when, as and if declared by the Board out of funds
legally available for that purpose, quarterly dividends, which shall be payable
in cash except as hereinafter provided, on the first day of January, April, July
and October in each year during which a share or fraction of a share of Series I
Preferred Stock is outstanding (each such date being referred to herein as a
"Quarterly Dividend Payment Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or fraction of a share of
Series I Preferred Stock, each such dividend to be in an amount per share
(rounded to the nearest cent) equal to:
(i) subject to the provision for adjustment set forth in the
next succeeding sentence,
(A) 1,000 times the aggregate per share amount of all
cash dividends declared on the Common Stock after the
immediately preceding Quarterly Dividend Payment Date or, with
respect to the first Quarterly Dividend Payment Date, after
the first issuance of any share or fraction of a share of
Series I Preferred Stock, plus
(B) 1,000 times the aggregate per share amount, which
shall be payable in kind, of all non-cash dividends or other
distributions (other than (x) a dividend on the Common Stock
that is payable in shares of Common Stock or (y) a
distribution solely on account of a reclassification of, or
other split-up, division or combination of shares of, Common
Stock) declared on the Common Stock after the immediately
preceding Quarterly Dividend Payment Date or, with respect to
the first Quarterly Dividend Payment Date, after the first
issuance of any share or fraction of a share of Series I
Preferred Stock; or
(ii) if no dividend or other distribution (other than (x) a
dividend on the Common Stock that is payable in shares of Common Stock
or (y) a distribution solely on account of a reclassification of, or
other split-up, division or combination of shares of, Common Stock)
shall have been declared on the Common Stock after the immediately
preceding Quarterly Dividend Payment Date or, with respect to the first
Quarterly Dividend Payment Date, after the first issuance of any share
or fraction of a share of Series I Preferred Stock, $.01.
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In the event that the Corporation shall at any time after February 26, 1999, (1)
declare a dividend on the Common Stock that is payable in shares of Common
Stock, (2) reclassify the Common Stock or (3) otherwise effect a split-up,
division or combination of shares of Common Stock, then in each such case the
amount per share to which holders of shares of Series I Preferred Stock were
entitled immediately prior to such event under Section 2(a)(i) shall be adjusted
by multiplying such amount by a fraction, the numerator of which shall be the
number of shares of Common Stock that are outstanding immediately after such
event and the denominator of which shall be the number of shares of Common Stock
that were outstanding immediately prior to such event.
(b) Immediately after the Board declares a dividend or other
distribution on the Common Stock (other than (x) a dividend on the Common Stock
that is payable in shares of Common Stock or (y) a distribution solely on
account of a reclassification of, or other split-up, division or combination of
shares of, Common Stock), if any share or fraction of a share of Series I
Preferred Stock is then outstanding, the Board shall declare a dividend on the
Series I Preferred Stock, which shall be payable at the time and in the amount
provided in Section 2(a). If (i) any share or fraction of a share of Series I
Preferred stock is then outstanding, (ii) no dividend or other distribution
(other than (x) a dividend on the Common Stock that is payable in shares of
Common Stock or (y) a distribution solely on account of a reclassification of,
or other split-up, division or combination of shares of, Common Stock) shall
have been declared on the Common Stock during the period between the immediately
preceding Quarterly Dividend Payment Date and the next succeeding Quarterly
Dividend Payment Date or, with respect to the first Quarterly Dividend Payment
Date, between the date of the first issuance of any share or fraction of a share
of Series I Preferred Stock and such first Quarterly Dividend Payment Date, and
(iii) there are funds legally available for the payment of a dividend on the
Series I Preferred Stock, the Board shall, at any time prior to such next
succeeding Quarterly Dividend Payment Date or such first Quarterly Dividend
Payment Date, as the case may be, declare a dividend of $1.00 per share on the
Series I Preferred Stock, which shall be payable on such next succeeding
Quarterly Dividend Payment Date or such first Quarterly Dividend Payment Date,
as the case may be.
(c) Dividends on shares of Series I Preferred Stock shall begin to
accrue and be cumulative from the Quarterly Dividend Payment Date that
immediately precedes the date of issuance of such shares unless (i) the date of
issuance of such shares is prior to the record date for the determination of
holders of shares of Series I Preferred Stock entitled to receive a dividend on
the first Quarterly Dividend Payment Date, in which event dividends on such
shares shall begin to accrue and be cumulative from the date of issuance of such
shares, (ii) the date of issuance of such shares is a Quarterly Dividend Payment
Date, in which event dividends on such shares shall begin to accrue and be
cumulative from such Quarterly Dividend Payment Date, or (iii) the date of
issuance of such shares is a date after the record date for the determination of
holders of shares of Series I Preferred Stock entitled to receive a dividend on
the Quarterly Dividend Payment Date that next succeeds the date of issuance of
such shares, in which event dividends on such shares shall begin to accrue and
be cumulative from such next succeeding Quarterly Dividend Payment Date. Accrued
but unpaid dividends on shares of Series I Preferred Stock shall not bear
interest. If a dividend is declared on the Series I Preferred Stock and the
total amount of that dividend is less than the total amount of all
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dividends accrued and payable on all shares of Series I Preferred Stock at the
time of payment of that dividend, then the portion of the total amount of that
dividend to be allocated to each of such shares shall be determined by
multiplying the total amount of that dividend by a fraction, the numerator of
which shall be the total amount of all dividends accrued and payable on that
share at that time and the denominator of which shall be the total amount of all
dividends accrued and payable on all such shares at that time. The Board may fix
a record date for the determination of holders of shares of Series I Preferred
Stock entitled to receive a dividend or other distribution on the Series I
Preferred Stock, which record date shall be no more than 30 days prior to the
date fixed for the payment of that dividend or other distribution.
(d) If at any time (i) any holder of shares of Series I Preferred Stock
would have been entitled under the foregoing provisions of this Section 2 to
have received by that time a dividend on such shares, assuming that such
dividend had been declared, out of funds legally available for that purpose, at
the time and in the amount provided in the foregoing provisions of this Section
2, and (ii) such dividend or any part thereof has not been paid to such holder,
then such dividend or part thereof shall be considered accrued and payable at
that time.
Section 3. Voting.
(a) Subject to the provision for adjustment set forth in the next
succeeding sentence, each share of Series I Preferred Stock shall, except as
otherwise provided by law, entitle the holder thereof to 1,000 votes on each
matter that is submitted to a vote of stockholders of the Corporation. In the
event that the Corporation shall at any time after February 26, 1999, (i)
declare a dividend on the Common Stock that is payable in shares of Common
Stock, (ii) reclassify the Common Stock or (iii) otherwise effect a split-up,
division or combination of shares of Common Stock, then in each such case the
number of votes per share to which holders of shares of Series I Preferred Stock
were entitled immediately prior to such event shall be adjusted by multiplying
such number by a fraction, the numerator of which shall be the number of shares
of Common Stock that are outstanding immediately after such event and the
denominator of which shall be the number of shares of Common Stock that were
outstanding immediately prior to such event.
(b) Except as otherwise provided by law or in the Restated Certificate
of Incorporation of the Corporation or the resolution or resolutions of the
Board providing for the issuance of shares of Preferred Stock (including but not
limited to these resolutions):
(i) the holders of shares of Series I Preferred Stock, the
holders of shares of Common Stock and the holders of shares of any
other class or series of capital stock of the Corporation having
general voting rights shall vote together as a single class on each
matter that is submitted to a vote of stockholders of the Corporation,
and
(ii) the holders of shares of Series I Preferred Stock shall
not have any special voting rights.
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Section 4. Certain Restrictions. Unless and until all dividends at the
time accrued and payable on all shares of Series I Preferred Stock have been
paid in full, the Corporation shall not:
(a) declare or pay any dividend, or make any other
distribution, on any class or series of capital stock of the
Corporation that ranks junior, either with respect to dividends or upon
liquidation, dissolution or winding up, to the Series I Preferred Stock
(any such class or series being referred to herein as "Junior Stock");
(b) declare or pay any dividend, or make any other
distribution, on any class or series of capital stock of the
Corporation that ranks in parity, either with respect to dividends or
upon liquidation, dissolution or winding up, with the Series I
Preferred Stock (any such class or series being referred to herein as
"Parity Stock"), except dividends that are paid ratably on all shares
of Series I Preferred Stock on which dividends are at the time accrued
and payable and all shares of Parity Stock on which dividends are at
the time accrued and payable in proportion to the total amounts of
dividends at the time accrued and payable on all such shares;
(c) redeem, purchase or otherwise acquire for consideration
any shares of Junior Stock, provided that the Corporation may at any
time redeem, purchase or otherwise acquire shares of Junior Stock in
exchange for shares of other Junior Stock; or
(d) redeem, purchase or otherwise acquire for consideration
any shares of Series I Preferred Stock or any shares of Parity Stock,
except in accordance with an offer to purchase made in writing to all
holders of such shares upon terms that the Board, after considering the
relative rights and preferences of the respective series and classes of
such shares, considers in good faith will result in fair and equitable
treatment among the holders of such shares.
Section 5. Reacquired Shares. Any shares of Series I Preferred
Stock that are purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and canceled promptly after the acquisition thereof.
Upon their cancellation, all of such shares shall become authorized but unissued
shares of Preferred Stock and thereafter may be issued as part of another series
of Preferred Stock, subject to the rights of holders (if any) of shares of
Series I Preferred Stock set forth in these resolutions.
Section 6. Liquidation, Dissolution or Winding Up. Upon any
liquidation, dissolution or winding up of the Corporation:
(a) no distribution shall be made to the holders of shares of
Junior Stock unless, prior to such distribution, the Corporation shall
have paid to each holder of shares of Series I Preferred Stock the sum
of (i) $100 per share of Series I Preferred Stock held by such holder
(such amount per share being referred to herein as the "Preference
Amount") plus (ii) the total
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amount of all dividends at the time accrued and payable on all shares
of Series I Preferred Stock held by such holder;
(b) no distribution shall be made to the holders of shares of
Parity Stock, except distributions that are made ratably on both all
shares of Series I Preferred Stock and all shares of Parity Stock in
proportion to the total amounts to which the holders of all such shares
are entitled upon such liquidation, dissolution or winding up; and
(c) each holder of shares of Series I Preferred Stock shall be
entitled to receive the sum of (i) the total amount of all dividends at
the time accrued and payable on all shares of Series I Preferred Stock
held by such holder plus (ii) an aggregate amount per share (such
amount per share being referred to herein as the "Distributable
Amount"), inclusive of the Preference Amount but subject to the
provision for adjustment set forth in the next succeeding sentence, of
Series I Preferred Stock held by such holder that is equal to 1,000
times the aggregate per share amount to be distributed to holders of
shares of Common Stock upon such liquidation, dissolution or winding
up.
In the event that the Corporation shall at any time after February 26, 1999, (1)
declare a dividend on the Common Stock that is payable in shares of Common
Stock, (2) reclassify the Common Stock or (3) otherwise effect a split-up,
division or combination of shares of Common Stock, then in each such case the
Distributable Amount to which a holder of shares of Series I Preferred Stock was
entitled immediately prior to such event shall be adjusted by multiplying such
Distributable Amount by a fraction, the numerator of which shall be the number
of shares of Common Stock that are outstanding immediately after such event and
the denominator of which shall be the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc. If the Corporation shall enter
into any consolidation, merger, share exchange or other transaction in which all
outstanding shares of Common Stock are exchanged for or changed into other
securities, cash, other property or any combination thereof, then each
outstanding share of Series I Preferred Stock shall at the same time be
similarly exchanged for or changed into an amount per share, subject to the
provision for adjustment set forth in the next succeeding sentence, equal to
1,000 times the aggregate amount of securities, cash and other property for
which each outstanding share of Common Stock is exchanged or into which each
outstanding share of Common Stock is changed. In the event that the Corporation
shall at any time after February 26, 1999, (1) declare a dividend on the Common
Stock that is payable in shares of Common Stock, (2) reclassify the Common Stock
or (3) otherwise effect a split-up, division or combination of shares of Common
Stock, then in each such case the amount per share for which Series I Preferred
Stock would be exchanged, or into the amount which Series I Preferred Stock
would be changed, immediately prior to such event under the immediately
preceding sentence of this Section 7, shall be adjusted by multiplying such
amount by a fraction, the numerator of which shall be the number of shares of
Common Stock that are outstanding immediately after such event and the
denominator of which shall be the number of shares of Common Stock that were
outstanding immediately prior to such event.
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Section 8. Redemption. The shares of Series I Preferred Stock shall not
be redeemable.
Section 9. Ranking. The Series I Preferred Stock shall rank junior to
each other series of Preferred Stock, both with respect to dividends and upon
liquidation, dissolution or winding up, unless the certificate of designation,
powers, preferences and rights of such other series of Preferred Stock shall
provide otherwise.
Section 10. Amendment. If any share or fraction of a share of Series I
Preferred Stock is outstanding, neither the Restated Certificate of
Incorporation of the Corporation nor the resolution or resolutions of the Board
providing for the issuance of shares of Preferred Stock (including but not
limited to these resolutions) shall be amended in any manner that would
materially alter or change the powers, preferences or rights of holders of
shares of Series I Preferred Stock so as to affect such holders adversely unless
that amendment shall have received the affirmative vote of the holders of a
majority of the outstanding shares of Series I Preferred Stock voting separately
as a class. Notwithstanding the foregoing provisions of this Section 10, whether
or not a share or a fraction of a share of Series I Preferred Stock is
outstanding, (a) the Board may from time to time provide by resolution or
resolutions for the issuance of shares of Preferred Stock of one or more series
that rank prior to the Series I Preferred Stock, either with respect to
dividends or upon liquidation, dissolution or winding up, or both with respect
to dividends and upon liquidation, dissolution or winding up, and (b) no vote or
consent of any holder of shares of Series I Preferred Stock shall be required
either as a condition to the adoption of such resolution or resolutions or as a
condition to the issuance of such shares of Preferred Stock.
Section 11. Fractional Shares. Series I Preferred Stock may be issued
in fractions of a share. Each holder of a fraction of a share of Series I
Preferred Stock shall be entitled to exercise voting rights, to receive
dividends and other distributions, and to have all other rights of the holders
of whole shares of Series I Preferred Stock in proportion to the fraction of a
share of Series I Preferred Stock held by that holder.
RESOLVED FURTHER, that the proper officers of the Corporation be, and
each of them hereby is, authorized to execute a Certificate of Designation,
Powers, Preferences and Rights of Series I Preferred Stock of the Corporation
pursuant to Section 151 of the General Corporation Law of the State of Delaware
and to take all appropriate action to cause that Certificate to be filed,
recorded and become effective in accordance with Section 103 of the General
Corporation Law of the State of Delaware."
IN WITNESS WHEREOF, this Certificate has been executed effective the
26th day of February, 1999.
/s/ JOHN E. VOLLMER
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John E. Vollmer
Chief Financial Officer and
Corporate Secretary
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