EXHIBIT 4.3
[REGISTRATION RIGHTS AGREEMENT]
THIS AGREEMENT is dated March 25, 1994 by and between UTI ENERGY CORP.,
a Delaware corporation (the "Company") and BEAR, STEARNS & CO. INC., a Delaware
corporation ("Holder").
WITNESSETH:
Holder is the record and beneficial owner of ____ shares (the "Shares")
of the Company's common stock, par value $.001 per share (the "Common Stock").
Holder desires to obtain certain rights with respect to the registration of
Shares under the Securities Act of 1933, as amended (the "Act") in order to
facilitate the public sale and distribution of all or a part of such Shares, and
the Company is willing to furnish such rights under and subject to the terms and
conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereby agree as follows:
1. Registration Rights.
(a) Registration of Common Stock by the Company. Until such
time as the Holder no longer holds Shares that are entitled to be registered
under this Agreement by virtue of subsection 1(h) hereof, whenever the Company
shall propose to file a registration statement (other than on Form S-4, Form S-8
or any successor forms thereto) under the Act, or a similar document under any
other statute than in effect corresponding to the Act relating to the public
offering of shares of the Common Stock of the Company within the United States
(a "Registration Statement"), the Company shall (i) give written notice at least
thirty (30) days prior to the filing thereof to the Holder specifying the date
on which the Company proposes to file such Registration Statement and advising
the Holder of this right to have all or any portion of the Shares included
therein, (ii) at the written request of the Holder given to the Company within
fifteen (15) days after receipt of any such notice (which request shall specify
the Shares intended to be sold or disposed of), include among the securities
covered by such Registration Statement, the number of such Shares so requested
to be included, and (iii) use its reasonable efforts to cause such Registration
Statement to become effective and to remain effective for the period required to
permit the public offering and sale by the Holder of the Shares covered thereby
(but not for more than 180 days following the effective date thereof). However,
if all or any part of the proposed registration is to be underwritten (whether
on a "best efforts" or a "firm commitment" basis), the managing underwriter
shall have the right to exclude Shares to the extent the inclusion of such
Shares would, in the written opinion of such managing underwriter, adversely
affect the successful distribution of the underwritten portion of the public
offering, provided (a) during the time the Holder owns 25% or more of the
issued and outstanding Common Stock of the Company, such exclusion applies on a
proportional basis not only to the Shares but also to all other securities
proposed to be included including those for which the Company initiated the
registration and those proposed to be included by other shareholders of the
Company who have the right to include securities of the Company in such
registration, and (b) during the time the Holder owns less than 25% of the
issued and outstanding Common Stock of the Company such exclusion applies on a
proportional basis not only to the Shares but also to all other securities
proposed to be included other than those for which the Company initiated the
registration. Any exclusion of Shares shall be made pro rata among the Holder,
the Company, if applicable, and other affected shareholders. The Company shall
not grant registration rights to any other person after the date of this
Agreement and while the Holder shall remain entitled to registration rights
pursuant to this Section 1(a). Holder acknowledges that the Company has
previously granted certain registration rights in the Common Stock Purchase
Warrant dated December 14, 1993 issued to UGI Corporation or its affiliates,
and that such rights remain outstanding.
(b) Registration of Shares at the Request of a Stockholder. Until such
time as the Holder no longer holds Shares that are entitled to be registered
under this Agreement by virtue of subsection 1(h) hereof, whenever the Company
shall receive a written request of the Holder that the Company file a
Registration Statement under the Act (which request shall state the number of
Shares to be registered), the Company shall promptly (and in any event within
45 days), subject to the provisions contained in the next paragraph of this
Section 1(b), (i) give written notice of such request to each other shareholder
having registration rights, if any, of his right to have shares then held by
such shareholder included among the securities covered by such registration and
offering each such other shareholder an opportunity to request in writing to
have any or all of such shareholder's shares to be so included, (ii) promptly
prepare and file such Registration Statement, and (iii) use its reasonable
efforts to cause the same to become effective as soon as practicable and to
remain effective for the period required to permit the public offering and sale
of the Shares covered thereby (but not for more than 180 days following the
effective date thereof). Whenever the Company shall file a Registration
Statement pursuant to this Section 1(b) in connection with an underwritten
public offering by the Holder, no securities other than Shares of Holder shall
be included among the securities covered by such Registration Statement to the
extent the inclusion of such other securities would, in the written opinion of
the managing underwriter of such offering, adversely affect
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the successful distribution of Holder's Shares unless the Holder shall have
consented in writing to the inclusion of such other securities. The managing
underwriter, if any, of any offering pursuant to this Section 1(b) shall be
selected by the Holder and shall be reasonably satisfactory to the Company
(Bear, Stearns & Co. Inc. being deemed reasonably satisfactory).
At such time as Holder no longer holds Ten Percent (10%) of the
outstanding shares of Common Stock and thereafter, Holder agrees that upon
receipt by the Company of a written request to file a Registration Statement
pursuant to this Section 1(b), the Company shall have the right, exercisable
within ten (10) days after receipt of such notice by the Company's giving notice
to the Holder to suspend its obligation to file such Registration Statement for
a period which shall commence on the date such notice is given and continued
until the earlier to occur or (x) the expiration of 60 days, or (y) the date the
Company next files with the Securities and Exchange Commission a quarterly
report on Form 10-Q or an annual report on Form 10-K (the "Blockage Period").
The notice from the Company must state that the Company has determined that it
is in its best interests to delay filing such Registration Statement during the
Blockage Period. A further request to file a Registration Statement pursuant to
this Section 1(b) can be made for a period of 20 days after the termination of
the Blockage Period, which request the Company may not suspend. If the Company
receives any request pursuant to this Section 1(b) after the end of such 20 day
period then the Company may again exercise its right to suspend its obligation
pursuant to this Section 1(b) during the Blockage Period by giving the notice
required by the next preceding sentence. The foregoing procedures shall be
repeated successively until such time as the Company complies with its
obligations under the first paragraph of this Section 1(b) or it is no longer
obligated to comply therewith. The Holder further agrees that the Company shall
be obligated to comply only three times with the provisions contained in this
subsection 1(b).
(c) Ancillary Company Action to be Taken in Connection with
Any Registration. Whenever the Company shall include any Shares among the
securities covered by a Registration Statement pursuant to Section 1(a) or file
a Registration Statement pursuant to Section 1(b), the Company shall (i) comply
with all applicable rules and regulations of the Securities and Exchange
Commission in connection therewith, (ii) thereafter, for such period of time as
shall be required in connection with the transactions contemplated thereby and
permitted by applicable rules, regulations and administrative practice (but not
for more than 180 days following the effective date of such Registration
Statement), file such post-effective amendments and supplements thereto as shall
be necessary so that neither such Registration
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Statement nor any related prospectus, prospectus supplement or amendment shall
contain any material misstatement or omission relative to the Company or any of
its assets or its business or affairs and so that such Registration Statement
and prospectus, prospectus supplement or amendment will otherwise comply with
all applicable legal requirements, (iii) furnish to the Holder such number of
copies of such Registration Statement and any related preliminary prospectus,
prospectus, post-effective amendment, supplement or similar document forming a
part thereof as Holder may reasonably request) and (iv) take all action which
may be necessary under the securities or Blue Sky laws of any state (except that
the Company shall not be required to qualify generally to do business as a
foreign corporation in any jurisdiction wherein it is not so qualified, to
subject itself to taxation in any such jurisdiction or to consent to general
service of process in any such jurisdiction), and as may be reasonably requested
by the Holder, to permit the public offering and sale of the Shares held by the
Holder and covered by such Registration Statement.
(d) Conditions Precedent to Registration. Anything in this
Section 1 to the contrary notwithstanding, the company shall not be obliged to
include among the securities covered by a Registration Statement any Shares
requested to be so included pursuant to Section 1(a) or file a Registration
Statement pursuant to Section 1(b) unless the Holder shall theretofore have
furnished the Company, in writing, all information with respect to the Holder,
the Shares requested to be so included, the transaction or transactions which
the Holder contemplates and each underwriter who will act in connection
therewith, if any, which any law, rule or regulation requires to be disclosed
therein. In addition, the obligations of the Company hereunder are subject to
and conditioned upon the Holder's providing such other information and taking
such action as may reasonably by the Company in connection with such
registration.
(e) Expenses. All reasonable out-of-pocket expense, disbursement
and fees incurred by the Company in connection with any action to be taken under
Section 1(b) (including the reasonable fees and expenses of any counsel and
accountants engaged by the Company and any underwriter's commissions or expenses
or transfer taxes) shall be borne by the Holder. If Holder requests that Shares
be included in a Registration Statement pursuant to Section 1(a), the Holder
shall be responsible for any fees paid in respect of such Share to the
Securities and Exchange Commission, the National Association of Securities
Dealers, Inc., any securities exchange on which the share are listed and to any
state in which the Shares are
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registered, together with all underwriting discounts and commissions applicable
to such Shares.
(f) Indemnification.
(i) The Company shall indemnify and hold
harmless the [ILLEGIBLE] and each person, if any, who controls the Holder within
the meaning of Section 15 of the Act or Section 20 of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and each director, officer,
employee or agent of the Holder from and against any loss, claim, damage,
expense, cost or liability, joint or several, and any action in respect thereof,
to which the Holder, controlling person, director, officer, employee or agent
may become subject, insofar as such loss, claim, damage, liability, expense,
cost or action arises out of, or is based upon, any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement or
any Prospectus filed by the Company pursuant to this Agreement (the
"Registration Statement" and the "Prospectus") or in any amendment or supplement
thereto, or which arises out of, or is based upon, the omission to state therein
a material fact required to be stated therein or necessary to make the
statements, therein, in light of the circumstances under which they were made,
not misleading, and shall promptly reimburse the Holder and each such
controlling person, director, officer, employee or agent for legal and other
expenses reasonably incurred, as such legal and other expenses are incurred, by
the Holder or controlling person, director, officer, employee or agent in
investigating or defending or preparing to defend against any such loss, claim,
damage, liability, expense, cost or action; provided that the Company shall not
be liable in any such case to the extent that any such loss, claim, damage,
liability, expense, cost or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission made in
the Registration Statement or the Prospectus or in any amendment or supplement
thereto in reliance upon and in conformity with written information specifically
relating to the Holder furnished to the Company by or on behalf of the Holder
specifically for inclusion therein; and provided further that this indemnity
shall not inure to the benefit of the Holder, any person controlling the Holder
or any director, officer, employee or agent of the Holder on account of any
loss, claim, damage, liability, expense, cost or action arising from the sale of
Shares to any person by the Holder if the Holder or the Holder's agent failed to
send or deliver a copy of the Prospectus with or prior to the delivery of
written confirmation of the sale of Shares by the Holder to the person asserting
such loss, claim, damage, liability, expense cost or action who purchased Shares
that are the subject thereof from the Holder, and such delivery would have
eliminated such loss, claim, damage,
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liability, expense, cost or action, unless such failure resulted from
non-compliance by the Company with the first sentence of Section 1(c) hereof.
The foregoing indemnity agreement is in addition to any liability which the
Company may otherwise have to the Holder or any controlling person, director,
officer, employee or agent of the Holder. The Company shall also indemnify
underwriters, selling brokers, dealer managers and similar securities industry
professionals participating in the distribution (as described in the
Registration Statement), their officers and directors and each person who
controls such person (within the meaning of Section 15 of the Act or Section 20
of the Exchange Act) to the same extent as provided above with respect to the
indemnification of the Holder if required by the Holder.
(ii) The Holder shall indemnify and hold harmless the
Company, any person who controls the Company and each director, officer,
employee or agent of the Company from and against any loss, claim, damage,
expense, cost or liability and any action in respect thereof, to which the
Company or any such controlling person, director, officer, employee or agent may
become subject, insofar as such loss, claim, damage, liability, expense, cost or
action arises out of, or is based upon, any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or the
Prospectus or in any amendment or supplement thereto or which arises out of, or
is based upon, the omission or alleged omission to state therein a material fact
necessary in order to make the statements therein, in light of the circumstance
under which they were made, not misleading, but in each case only to the extent
that the untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
specifically relating to the Holder furnished to the Company by or on behalf of
the Holder specifically for inclusion therein, and shall reimburse the Company
or any such controlling person, director, officer employee or agent for any
legal and other expenses reasonably incurred, as such legal and other expenses
incurred, by the Company or any such controlling person, director, officer,
employee or agent in investigating or defending or preparing to defend against
any such loss, claim, damage, liability, expense cost or action. The foregoing
indemnity agreement is in addition to any liability which the Holder may
otherwise have to the Company or any of its controlling persons, directors,
officers, employees or agents. The Company shall be entitled to receive
indemnities from underwriters, selling brokers, dealer managers and selling
securities industry professional participating in the distribution, to the same
extent as provided above with respect to information so furnished in writing by
such persons specifically for inclusion in the Registration Statement or the
Prospectus or any amendment or supplement thereto.
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(iii) Promptly after receipt by an indemnified party under this
Section 1(f) of notice of any claim or the commencement of any action
(including, without limitation, any governmental investigation or inquiry), the
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under this Section 1(f) notify the indemnifying party in
writing of the claim or the commencement of the action, provided that the
failure to notify the indemnifying party shall not relieve if from any
liability which it may have to any indemnified party under this Section 1(f)
except to the extent that it has been prejudiced in any material respect by
such failure or from any liability which it may have to any indemnified party
otherwise that under this Section 1(f). If any such claim or action shall be
brought against an indemnified party, and it shall notify the indemnifying
party thereof, the indemnifying party shall be entitled to participate therein,
and, to the extent that it wishes, to assume the defense thereof with counsel
reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 1(f) for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided that an
indemnified party shall have the right to employ counsel to represent it and
its respective controlling persons, directors, officers, employees or agents
who may be subject to liability arising out of any claim in respect of which
indemnity may be sought by such indemnified party against such indemnifying
party under this Section 1(f) if the employment of such counsel shall have been
authorized in writing by such indemnifying party in connection with the defense
of such action, or the indemnifying party shall not have promptly employed
counsel reasonably satisfactory to the indemnified party to assume the defense
of such action, or if counsel for any of the indemnified parties shall have
reasonably concluded that there may be defenses available to the indemnified
party and its respective controlling persons, directors, officers, employees or
agents which are in conflict with those available to the indemnifying party,
and in that event the reasonable fees and expenses of one firm of separate
counsel for the indemnified party and all such other indemnified persons (in
addition to the reasonable fees and expenses of local counsel in each
jurisdiction) shall be paid by the indemnifying party.
(iv) If the indemnification provided for in this Section 1(f)
shall for any reason be unavailable to any indemnified party under Section
1(f)(i) or 1(f)(ii) hereof in respect of any loss, claim, damage, expense, cost
or liability, or any action in respect thereof, referred to therein, then each
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indemnifying party shall, in lien of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage, expense, cost or liability, or action in respect
thereof, in such proportion as is appropriate to reflect the relative fault of
the Company on the one hand and the Holder on the other with respect to the
statements or omissions which resulted in such loss, claim, damage, expense,
cost or liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative fault shall be determined by reference
to whether the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or the Holder on the other, the intent
of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid
or payable by an indemnified party as a result of the loss, claim, damage,
expense, cost or liability, or action in respect thereof, referred to above in
this Section 1(f)(iv) shall be deemed to include, for purposes of this Section
1(f)(iv), any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. If an indemnifying party assumes
the defense of any action, such indemnifying party may not settle any such
action without the written consent of the indemnified party unless such
settlement includes a complete release of the indemnified party in respect of
all claims made against such indemnified party.
(v) The agreements contained in this Section 1(f) shall survive the sale
of Shares and shall remain in full force and effect, regardless of any
termination or cancellation of this Agreements or any investigation made by or
on behalf of any indemnified party.
(q) Listing of Shares. At any time as any shares of Common Stock are
listed on a national securities exchange or designated as a national market
system security by the National Association of Securities Dealers, Inc.
("NASD"), or otherwise listed on the NASD automated quotation system, and a
Registration Statement filed pursuant to Section 1(a) or (b) has been declared
effective, the Company will promptly obtain and maintain the approval for
listing of each such exchange or system, as the case may be, of the Shares
included in such Registration Statement.
(h) Excluded Shares. Any Shares shall be cease to be entitled to the
benefits of the provisions of this Section 1
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when (i) a Registration Statement covering such Shares has been declared
effective and they have been disposed of pursuant to such effective
Registration Statement, (ii) they are distributed to the public pursuant to
Rule 144 or Rule 144A under the Act, or (iii) they have been otherwise
transferred by the Holder.
(i) Holdback. The Holder agrees, to the extent required
by applicable law, not to effect any public sale or distribution of Shares, or
any securities convertible into or exchangeable or exercisable for such Shares,
during the five business days prior to, and during the 90 day person following,
the effective date of any Registration Statement including Shares (except as
part of such registration), if and to the extent timely notified in writing by
the Company, in the case of a non-underwritten public offering, or by the
managing underwriter, in the case of an underwritten public offering. The
Company agrees not to effect any public sale or distribution of Common Stock,
any securities similar to the Shares, or convertible into or exchangeable or
exercisable for such securities during the five business days prior to, and
during the 90 day period following, the effective date of any Registration
Statement in which the Holder is participating pursuant to Section 1 (except as
part of such registration and except pursuant to a registration on Form S-4 or
Form S-8, or any successor to such forms) and that any agreement entered into
after the date hereof pursuant to which the Company issues or agrees to issue
any privately placed securities similar to those being registered shall contain
a provision under which holders of such securities agree not to effect any
public sale or distribution of any such securities during the periods described
in the prior sentence, in each case including a sale pursuant to Rule 144 or
144A under the Act (except as part of any such registration, if permitted).
(j) Other Covenants of the Company. In connection with
the sale of any Shares the Company shall:
(i) use its reasonable best effectors to comply with
all applicable rules and regulations of the Securities and Exchange Commission,
and make available to its security holders, as soon as reasonably practicable,
an earnings statement covering the period of at least twelve months, but not
more than eighteen months, beginning with the first day of the Company's first
fiscal quarter after the effective date of any Registration Statement, which
earnings statements shall satisfy the provisions of Section 12(a) of the Act;
(ii) provide a transfer agent and registrar for all
Shares covered by each Registration Statement not later than the effective date
of such registration statement;
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(iii) enter into such agreements (including an underwriting
agreement in customary form) and take such other actions as the Holder shall
reasonably request in order to expedite or facilitate the disposition of Shares;
(iv) use its reasonable best efforts to obtain an opinion from
the Company's counsel and a "cold comfort" letter from the Company's independent
public accountants in customary form and covering such matters of the type
customarily covered by such opinions and "cold comfort" letters as the Holder
shall reasonably request;
(v) make available for inspection by the Holder, by each
underwriter participating in any disposition to be affected pursuant to such
registration statement and by any attorney, accountant or other agent retained
by the Holder or any such underwriter, all pertinent financial and other
records, pertinent corporate documents and properties of the Company, and cause
all of the Company's officers, directors and employees to supply all information
reasonably requested by the Holder or any such underwriter, attorney, accountant
or agent in connection with such registration statement; provided, however, that
Holder or any underwriter to whom such information is disclose shall in writing
agree to use information furnished solely in connection with the contemplated
public offering of Shares; and
(vi) permit the holder to participate in the preparation of
each Registration Statement and include therein material, furnished to the
Company in writing, which in the judgment of the Holder, subject to the consent
of the Company (which shall not be unreasonably withheld), should be included.
2. Assignment; Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
3. Entire Agreement; Modification. This Agreement constitutes the entire
agreement of the parties with respect to its subject matter and supersedes all
prior or contemporaneous understandings, negotiations and agreements of the
parties concerning such subject matter. This Agreement may be modified only in a
writing signed by the parties hereto specifically stating an intent to modify
this Agreement.
4. Governing Law. This Agreement shall be governed by, and construed and
interpreted in accordance with the substantive laws of the State of New York
applicable to contracts made and to be performed within that State, without
giving effect to conflicts of laws principles.
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5. Notice. Any notice, request or other communication required or
permitted to be given pursuant to this Agreement shall be in writing and shall
be (a) mailed by U.S. Express Mail or U.S. Certified Mail, in either case
Return Receipt Requested, (b) delivered by recognized overnight courier such as
Federal Express, or (c) hand delivered to the party to whom addressed at the
following addresses:
if to the Company, UTI Energy Corp.
Suite 112, 485 Devon Park Drive
Wayne, PA 19087
Attn: Vaughn Drum, President;
with a copy to: Montgomery, McCracken, Walker & Rhoads
Three Parkway - 20th Floor
Philadelphia, PA. 19102
Attn: Baldo M. Carnecchia, Jr., Esquire
if to the Holder, Bear, Stearns & Co. Inc.
245 Park Avenue
New York, NY 10147
Attn: Richard Matrick;
with a copy to: Weil, Gotshal & Manges
767 Fifth Avenue
New York, NY 10153
Attn: Dennis J. Block, Esquire;
or at such other address as may be designated by a party in writing. All
written communications shall be deemed effective upon the earlier of the actual
receipt thereof by the addresses or the expiration of two business days from
the date such communication is placed in the hands of the post office, a
recognized overnight courier, or a messenger service.
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IN WITNESS WHEREOF, this Agreement has been executed by the parties the
day and year first above written.
UTI ENERGY CORP.
By:
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SVP
BEAR, STEARNS & CO. INC.
By:
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