The undersigned acknowledge and agree that the foregoing statement on Schedule 13D is filed on behalf of each of the undersigned and that all subsequent amendments to this
statement on Schedule 13D shall be filed on behalf of each of the undersigned without the necessity of filing additional joint filing agreements. The undersigned acknowledge that each shall be responsible for the timely filing of such amendments,
and for the completeness and accuracy of the information concerning him or it contained herein and therein, but shall not be responsible for the completeness and accuracy of the information concerning the others, except to the extent that he or it
knows or has reason to believe that such information is inaccurate.
VOTING AND SUPPORT AGREEMENT
THIS VOTING AND SUPPORT AGREEMENT, dated as of December 18, 2019 (the “Agreement”), by and among Superior Energy Services, Inc., a Delaware
corporation (“NAM Parent”), New NAM, Inc., a Delaware corporation (“NAM”), Forbes Energy Services Ltd., a Delaware corporation (the “Company”), and Ascribe Capital LLC (the “Holder”).
W I T N E S S E T H:
WHEREAS, NAM Parent, NAM, the Company, Spieth Newco, Inc , a Delaware corporation (“Holdco”), Spieth Merger Sub, Inc., a Delaware corporation and a
wholly owned subsidiary of Holdco (“NAM Merger Sub”), and Fowler Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Holdco (“Fowler Merger Sub”), are entering into an Agreement and Plan of Merger, dated as of
the date hereof (as the same may be amended or supplemented from time to time, the “Merger Agreement”), providing for the mergers as described in Section 1.01 of the Merger Agreement, as a result of which NAM Merger Sub will merge with and
into NAM, with NAM surviving such merger as a direct, wholly owned subsidiary of Holdco and Fowler Merger Sub will merge with and into the Company, with the Company surviving such merger as a direct, wholly owned subsidiary of Holdco
(collectively, the “Mergers”), all on the terms and subject to the conditions of the Merger Agreement;
WHEREAS, the Holder is the Beneficial Owner (as defined below) of (a) 1,286,306 shares of common stock, par value $0.01 per share, of the Company (“Company
Common Stock”) and (b) any shares of Company Common Stock that will be issued at any time following the date hereof and prior to or on the record date of the meeting of Fowler’s stockholders to obtain the Fowler Stockholder Approval,
pursuant to a conversion of (i) the Fowler Convertible PIK Notes or (ii) the Fowler Term Loan Agreement, and, in each case, held by the Holder (all such shares of Company Common Stock, collectively, the “Shares”);
WHEREAS, concurrently with the execution and delivery of the Merger Agreement, and as a condition and an inducement to NAM Parent, NAM and the Company
entering into the Merger Agreement, the Holder is entering into this Agreement; and
WHEREAS, each of NAM Parent, NAM and the Company desires that the Holder agree, and the Holder is willing to agree, subject to the limitations herein, not
to Transfer (as defined below) any of its Shares, and to vote its Shares in a manner so as to facilitate consummation of the Mergers and the other transactions contemplated by the Merger Agreement, and to undertake certain additional obligations
in connection with the Mergers.
NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties and agreements contained herein, and intending to be legally bound
hereby, the parties agree as follows:
1.1 Definitions.
This Agreement is one of the “Voting Agreements” as defined in the Merger Agreement. Capitalized terms used but not defined herein shall have the meanings set forth in the Merger Agreement.
“Beneficially Own” or “Beneficial Ownership” has the meaning assigned to such term in Rule 13d-3 under the Exchange Act,
and a Person’s beneficial ownership of securities shall be calculated in accordance with the provisions of such Rule (in each case, irrespective of whether or not such Rule is actually applicable in such circumstance). For the avoidance of
doubt, Beneficially Own and Beneficial Ownership shall also include record ownership of securities.
“Beneficial Owners” shall mean Persons who Beneficially Own the referenced securities.
“Transfer” means (a) any direct or indirect offer, sale, lease, assignment, encumbrance, loan, pledge, grant of a security
interest, hypothecation, disposition or other similar transfer (by operation of law or otherwise), either voluntary or involuntary, or entry into any contract, option or other arrangement or understanding with respect to any offer, sale, lease,
assignment, encumbrance, loan, pledge, hypothecation, disposition or other transfer (by operation of law or otherwise), of any Shares owned by Holder (whether beneficially or of record), including in each case through the Transfer of any Person
or any interest in any Person or (b) in respect of any capital stock or interest in any capital stock, to enter into any swap or any other agreement, transaction or series of transactions that results in an amount of Shares subject to Article
III that is less than the amount of Shares subject to Article III as of the date hereof.
ARTICLE II
AGREEMENT TO RETAIN SHARES
2.1 Transfer
and Encumbrance of Shares.
(a) From the date hereof until the Termination Date, the Holder shall not, with
respect to any Shares Beneficially Owned by the Holder, (i) Transfer any such Shares or (ii) deposit any such Shares into a voting trust or enter into a voting agreement or arrangement with respect to such Shares or grant any proxy (except as
otherwise provided herein) or power of attorney with respect thereto.
(b) Notwithstanding Section 2.1(a), the Holder may: (i) Transfer Shares
to one or more Affiliates who (A) is a party to an agreement with NAM Parent and NAM with substantially similar terms as this Agreement or (B) if, as a condition to such Transfer, the recipient agrees in writing to be bound by this Agreement and
delivers a copy of such executed written agreement to NAM Parent, NAM and the Company prior to the consummation of such transfer or (ii) Transfer Shares with the prior written consent of each of NAM Parent, NAM and the Company.
(c) Nothing in this Agreement shall prohibit direct or indirect transfers of
equity or other interests in a Holder or any Shares by the Holder to an Affiliate of the Holder; provided, that a Transfer described in this sentence shall be permitted only if, as a precondition to such
Transfer, the transferee agrees in a writing, reasonably satisfactory in form and substance to each of NAM Parent, and NAM, to be bound by all of the terms of this Agreement.
2.2 Additional
Purchases; Adjustments. The Holder agrees that any shares of Company Common Stock and any other shares of capital stock or other equity of the Company that the Holder purchases or otherwise acquires or with respect to which the
Holder otherwise acquires voting power after the execution of this Agreement and prior to the Termination Date shall be subject to the terms and conditions of this Agreement to the same extent as if they constituted the Shares as of the date
hereof, and the Holder shall promptly notify the Company of the existence of any such after acquired Shares. In the event of any stock split, stock dividend, merger, reorganization, recapitalization, reclassification, combination, exchange of
shares or the like of the capital stock of the Company affecting the Shares, the terms of this Agreement shall apply to the resulting securities.
2.3 Unpermitted
Transfers; Involuntary Transfers. Any Transfer or attempted Transfer of any Shares in violation of this Article II shall, to the fullest extent permitted by Law, be null and void ab
initio. In furtherance of the foregoing, the Holder hereby authorizes and instructs the Company to instruct its transfer agent to enter a stop transfer order with respect to all of the Shares, subject to the provisions hereof and provided that any such stop transfer order will immediately be withdrawn and terminated by the Company following the termination of this Agreement. If any involuntary Transfer of any of the Holder’s Shares
shall occur, the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Shares subject to all of the restrictions, liabilities and rights under
this Agreement, which shall continue in full force and effect until valid termination of this Agreement.
ARTICLE III
AGREEMENT TO VOTE
3.1 Agreement
to Vote. Prior to the Termination Date, the Holder irrevocably and unconditionally agrees that it shall, at any meeting of the stockholders of the Company (whether annual or special and whether or not an adjourned or postponed
meeting), however called, appear at such meeting or otherwise cause the Shares to be counted as present thereat for the purpose of establishing a quorum and vote, or cause to be voted at such meeting, and consent to any written consent of the
stockholders of the Company, all Shares:
(a) in favor of adoption of the Merger Agreement and approving any other matters
necessary for consummation of the transactions contemplated by the Merger Agreement, including the Mergers (the “Transaction Matters”); and
(b) against (A) any agreement, transaction or proposal that relates to a Fowler
Takeover Proposal or any other transaction, proposal, agreement or action made in opposition to adoption of the Merger Agreement or in competition or inconsistent with the Mergers or matters contemplated by the Merger Agreement; (B) any action or
agreement that would reasonably be expected to result in a breach of any covenant, representation or warranty or any other obligation or agreement of the Company or any of its Subsidiaries contained in the Merger Agreement or of the Holder
contained in this Agreement; (C) any action or agreement that would reasonably be expected to result in (1) any condition to the consummation of the Mergers set forth in Article X of the Merger Agreement not being fulfilled or (2) any change to
the voting rights of any class of shares of capital stock of the Company (including any amendments to the Company’s Organizational Documents); and (D) any other action that would reasonably be expected to impede, interfere with, delay,
discourage, postpone or adversely affect any of the transactions contemplated by the Merger Agreement, including the Merger, or this Agreement. Any attempt by the Holder to vote, consent or express dissent with respect to (or otherwise to
utilize the voting power of), the Shares in contravention of this Section 3.1 shall be null and void ab initio. If the Holder is the Beneficial Owner, but not the holder of record, of any Shares,
the Holder agrees to take all actions necessary to cause the holder of record and any nominees to vote (or exercise a consent with respect to) all of such Shares in accordance with this Section 3.1.
Notwithstanding anything herein to the contrary in this Agreement, this Section 3.1 shall not require any Holder to be present (in person or by
proxy) or vote (or cause to be voted), any of the Shares to amend, modify or waive any provision of the Merger Agreement in a manner that reduces the amount, changes the form of the Merger Consideration payable, imposes any material restrictions
on or additional material conditions on the payment of the Merger Consideration, extends the Termination Date or otherwise adversely affects such Holder of the Company (in its capacity as such) in any material respect, and the Holder shall not be
obligated to vote in favor of the adoption of the Merger Agreement if it is amended in any such respect. Notwithstanding anything to the contrary in this Agreement, each Holder shall remain free to vote (or execute consents or proxies with
respect to) the Shares with respect to any matter other than as set forth in Section 3.1(a) and Section 3.1(b) in any manner such Holder deems appropriate, including in connection with the election of directors of the Company.
3.2 Change
in Company Recommendation. Notwithstanding anything to the contrary herein, in the event that the Board of the Directors of the Company (the “Company Board”) makes a Fowler Adverse Recommendation Change in accordance with
Section 7.02 of the Merger Agreement (the “Trigger Event”), the obligations of the Holder under Section 3.1 above shall be modified such that the number of Shares voted by the Holder in accordance with Section 3.1 above
that the Holder must vote as set forth in Section 3.1(a) and Section 3.1(b) shall be equal to (rounded up to the nearest whole share):
(a) The number of Shares that would
represent as of the time of the Trigger Event 17.5 percent of the aggregate voting power of the outstanding shares of Company Common Stock entitled to vote thereon.
3.3 Proxy.
The Holder hereby irrevocably appoints as its proxy and attorney-in-fact, NAM Parent and any person designated in writing by NAM Parent, each of them individually, with full power of substitution and resubstitution, to consent to or vote the
Shares as indicated in Section 3.1 above. The Holder intends this proxy to be irrevocable and unconditional during the term of this Agreement and coupled with an interest and will take such further action or execute such other
instruments as may be reasonably necessary to effect the intent of this proxy, and hereby revokes any proxy previously granted by the Holder with respect to the Shares (and the Holder hereby represents that any such proxy is revocable). The
proxy granted by the Holder shall be automatically revoked upon the occurrence of the Termination Date and NAM Parent may further terminate this proxy at any time at its sole election by written notice provided to the Holder.
ARTICLE IV
ADDITIONAL AGREEMENTS
4.1 Waiver
of Appraisal Rights; Litigation. To the fullest extent permitted by law, the Holder hereby irrevocably and unconditionally waives, and agrees not to exercise, any rights of appraisal (including under Section 262 of the DGCL)
relating to the Mergers (on the terms set forth in the Merger Agreement) that the Holder may have by virtue of the ownership of any Shares. The Holder further agrees not to commence, join in, and agrees to take all actions necessary to opt out
of any class in any class action with respect to, any claim, derivative or otherwise, against NAM Parent, NAM, Holdco or the Company or any of their respective Affiliates and each of their successors or directors relating to the negotiation,
execution or delivery of this Agreement or the Merger Agreement or the consummation of the transactions contemplated hereby or thereby, including any claim (a) challenging the validity of, or seeking to enjoin the operation of, any provision of
this Agreement or the Merger Agreement (including any claim seeking to enjoin or delay the Closing) or (b) alleging a breach of any fiduciary duty of the Company Board in connection with the negotiation and entry into this Agreement, the Merger
Agreement or the transactions contemplated hereby or thereby, and hereby irrevocably waives any claim or rights whatsoever with respect to any of the foregoing. For purposes of this Section 4.1, “Merger Agreement” shall mean the Merger Agreement
as of the date hereof and any amendments thereto in respect of which the Holder has not terminated this Agreement pursuant to Section 8.5.
4.2 Further
Assurances. The Holder agrees that from and after the date hereof and until the Termination Date, the Holder shall take no action that would reasonably be likely to adversely affect or delay the ability to perform its respective
covenants and agreements under this Agreement.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF HOLDER
5.1 Representations
and Warranties. The Holder hereby represents and warrants as follows:
(a) Ownership. The Holder has, with respect to the Shares, and at all
times during the term of this Agreement will continue to have, Beneficial Ownership of, good and valid title to and full and exclusive power to vote, issue instructions with respect to the matters set forth in Article III, agree to all of
the matters set forth in this Agreement and to Transfer the Shares. The Shares constitute all of the shares of Company Common Stock owned of record or Beneficially Owned by the Holder as of the date hereof. Other than this Agreement, (i) there
are no agreements or arrangements of any kind, contingent or otherwise, to which the Holder is a party obligating the Holder to Transfer or cause to be Transferred to any Person any of the Shares and (ii) other than the Merger Agreement, no
Person has any contractual or other right or obligation to purchase or otherwise acquire any of the Shares.
(b) Organization; Authority. The Holder is a limited liability company
duly organized, validly existing and in good standing under the Laws of its jurisdiction of formation. The Holder has full power and authority and is duly authorized to make, enter into and carry out the terms of this Agreement and to perform
its obligations hereunder. This Agreement has been duly and validly executed and delivered by the Holder and (assuming due authorization, execution and delivery by NAM Parent and NAM) constitutes a valid and binding agreement of the Holder,
enforceable against the Holder in accordance with its terms (except in all cases as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other Applicable Laws of general applicability relating to or
affecting creditors’ rights and to general principles of equity regardless of whether such enforceability is considered in a proceeding in equity or at Applicable Law), and no other action is necessary to authorize the execution and delivery by
the Holder or the performance of the Holder’s obligations hereunder.
(c) No Violation. The execution, delivery and performance by the Holder
of this Agreement will not (i) violate any order, judgment or decree applicable to the Holder or any of its Affiliates or (ii) conflict with, or result in a breach or default under, any agreement or instrument to which the Holder or any of its
Affiliates is a party or any term or condition of its limited liability company agreement, except where such conflict, breach or default would not reasonably be expected to, individually or in the aggregate, have an adverse effect on the Holder’s
ability to satisfy its obligations hereunder.
(d) Consents and Approvals. The execution and delivery by the Holder of
this Agreement does not, and the performance of the Holder’s obligations hereunder will not, require the Holder or any of its Affiliates to obtain any consent, approval, authorization or permit of, or to make any filing with or notification to,
any Person or governmental or regulatory authority, except such filings and authorizations as may be required under the Exchange Act.
(e) Absence of Litigation. To the knowledge of the Holder, as of the
date hereof, there is no proceeding pending against, or threatened in writing against the Holder that would prevent the performance by the Holder of its obligations under this Agreement or to consummate the transactions contemplated hereby or by
the Merger Agreement, including the Merger, on a timely basis.
(f) Absence of Other Voting Agreements. Other than pursuant to Permitted
Liens, none of the Shares is subject to any voting trust, proxy or other agreement, arrangement or restriction with respect to voting, in each case, that is inconsistent with this Agreement. None of the Shares is subject to any pledge agreement
pursuant to which the Holder does not retain sole and exclusive voting rights with respect to the Shares subject to such pledge agreement at least until the occurrence of an event of default under the related debt instrument.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
6.1 Representations
and Warranties. The Company hereby represents and warrants that it is a corporation duly organized, validly existing and in good standing under the Laws of Delaware. The Company has full power and authority and is duly authorized
to make, enter into and carry out the terms of this Agreement and to perform its obligations hereunder. This Agreement has been duly and validly executed and delivered by the Company and (assuming due authorization, execution and delivery by NAM
Parent and NAM) constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (except in all cases as such enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium and other Applicable Laws of general applicability relating to or affecting creditors’ rights and to general principles of equity regardless of whether such enforceability is considered in a proceeding in equity or at Applicable Law),
and no other action is necessary to authorize the execution and delivery by the Company or the performance of the Company’s obligations hereunder.
ARTICLE VII
TAX MATTERS
7.1 Tax
Representations and Warranties. The Holder hereby represents and warrants that neither the Holder nor any of its Affiliates is aware of the existence of or has knowledge of any fact, agreement, plan or circumstance, or has taken
or agreed to take any action, that could reasonably be expected to prevent or impede the Intended Tax Treatment.
7.2 Tax
Covenants.
(a) Neither the Holder nor any of its Affiliates shall take actions, cause
actions to be taken or fail to take actions, as a result of which (i) gain or loss would be recognized for U.S. federal income tax purposes upon the transfer that is deemed to occur for U.S. federal income tax purposes of NAM Common Stock to
Holdco in exchange for Holdco Common Stock pursuant to the NAM Merger except for gain that is recognized for U.S. federal income tax purposes upon (x) the receipt of cash in lieu of a fractional share of Holdco Common Stock or (y) the receipt of
the Holdco Bonds; or (ii) gain or loss would be recognized for U.S. federal income tax purposes upon the transfer that is deemed to occur for U.S. federal income tax purposes of Fowler Common Stock to Holdco in exchange for Holdco Class A Common
Stock pursuant to the Fowler Merger except for gain that is recognized for U.S. federal income tax purposes upon the receipt of cash in lieu of a fractional share of Holdco Class A Common Stock.
(b) Notwithstanding anything herein to the contrary, the Holder shall not (and
the Holder shall cause its Affiliates not to) take, or omit to take, any action (taking into account any obligations of the parties under the Stockholders and Registration Rights Agreement) that could reasonably be expected to prevent or impede
the Intended Tax Treatment. Both prior to and following the Effective Time, the Holder shall use its reasonable best efforts, and shall cause its Affiliates to use their reasonable best efforts, to take or cause to be taken any action necessary
for the Intended Tax Treatment to apply, including by reasonably refraining from any action that such party knows, or could reasonably be expected to know, is reasonably likely to prevent or impede the Intended Tax Treatment.
(c) The Holder shall use its reasonable best efforts to deliver to Fowler Tax
Counsel and NAM Tax Counsel tax representation letters in substantially the form set forth in Exhibit 8.02(b)(ii) of the Merger Agreement (i) dated and executed as of the date the Form S-4 shall have been declared effective by the SEC or such
other date(s) as determined necessary by such counsel in connection with the filing of the Form S-4 or its exhibits, and (ii) dated and executed as of the dates of the opinions described in Section 8.02(b) and Section 8.03(b) of the Merger
Agreement.
(d) The Holder shall report the Mergers, the Fowler Term Loan Contribution and
the Fowler PIK Contribution in accordance with the Intended Tax Treatment and shall not take any inconsistent position on any Return, in any audit or administrative or court proceeding, or otherwise, unless required pursuant to a “determination”
within the meaning of Section 1313(a) of the Code.
ARTICLE VIII
MISCELLANEOUS
8.1 No
Solicitation. The Holder shall not, nor shall it authorize or permit any of its Subsidiaries or any of their respective directors, officers or employees or any Representative retained by it or any of its Subsidiaries to, directly
or indirectly through another person, take any of the actions listed in clauses (i) and (ii) of Section 7.02(a) of the Merger Agreement (without giving effect to any amendment or modification of such clauses after the date hereof). The Holder
shall, and shall cause its Subsidiaries to, immediately cease and cause to be terminated all existing discussions or negotiations with any person conducted heretofore with respect to any Fowler Takeover Proposal and request the prompt return or
destruction of all confidential information previously furnished. In addition, the Holder agrees to be subject to Section 7.02(c) of the Merger Agreement (without giving effect to any amendment or modification of such clauses after the date
hereof) as if the Holder were “Fowler” thereunder. Notwithstanding the foregoing, to the extent the Company complies with its obligations under Section 7.02 of the Merger Agreement and participates in discussions or negotiations with a Person
regarding a Fowler Takeover Proposal, Holder and/or any of its Representatives may engage in discussions or negotiations with such Person to the extent that the Company can take such actions under Section 7.02 of the Merger Agreement.
8.2 Non-Recourse.
This Agreement may only be enforced against, and any claim or cause of action based upon, arising out of, or related to this Agreement or the transactions contemplated by this Agreement may only be brought against, the entities that are expressly
named as parties hereto and then only with respect to the specific obligations set forth herein with respect to such party. Except to the extent a named party to this Agreement (and then only to the extent of the specific obligations undertaken
by such named party in this Agreement and not otherwise), no past, present or future director, manager, officer, employee, incorporator, member, partner, equityholder, Affiliate, agent, attorney, advisor, consultant or Representative or Affiliate
of any of the foregoing shall have any liability (whether in contract, tort, equity or otherwise) for any one or more of the representations, warranties, covenants, agreements or other obligations or liabilities of or made under this Agreement
(whether for indemnification or otherwise) or of or for any claim based on, arising out of, or related to this Agreement or the transactions contemplated by this Agreement.
8.3 No
Ownership Interest. Nothing contained in this Agreement shall be deemed to vest in NAM Parent or NAM any direct or indirect ownership or incidence of ownership of or with respect to the Shares. All rights, ownership and economic
benefits of and relating to the Shares shall remain vested in and belong to the Holder, and neither NAM Parent nor NAM shall have any authority to manage, direct, restrict, regulate, govern or administer any of the policies or operations of the
Company or exercise any power or authority to direct the Holder in the voting or disposition of any Shares, except as otherwise expressly provided herein.
8.4 Disclosure.
The Holder consents to and authorizes the publication and disclosure by the Company, NAM Parent and NAM of the Holder’s identity and holding of Shares, and the terms of this Agreement (including, for avoidance of doubt, the disclosure of this
Agreement), in any press release, the Registration Statement, including Proxy Statement/Prospectus, as applicable, and any other disclosure document required under Applicable law in connection with the Merger Agreement, the Mergers and the
transactions contemplated by the Merger Agreement or this Agreement.
8.5 Termination.
This Agreement shall terminate at the earlier of (a) the date the Merger Agreement is validly terminated in accordance with its terms, (b) the Effective Time or (c) the provision of written notice by Holder within 10 business days of any
amendment to the Merger Agreement in a manner such that the Holder would not be required to vote in favor of the adoption of the Merger Agreement pursuant to Section 3.1 (such date, the “Termination Date”). Neither the provisions of this
Section 8.5 nor the termination of this Agreement shall relieve (i) any party hereto from any liability of such party to any other party incurred prior to such termination or (ii) any party hereto from any liability to any other party
arising out of or in connection with a breach of this Agreement. Nothing in the Merger Agreement shall relieve the Holder from any liability arising out of or in connection with a breach of this Agreement.
8.6 Amendment.
This Agreement may not be amended, modified or supplemented in any manner, whether by course of conduct or otherwise, except by an instrument in writing specifically designated as an amendment hereto, signed on behalf of each of the Holder, NAM
Parent, NAM, and the Company.
8.7 Reliance.
The Holder understands and acknowledges that NAM Parent, NAM and the Company are entering into the Merger Agreement in reliance upon such Holder’s execution and delivery of this Agreement.
8.8 Extension.
At any time prior to the Effective Time, each party may by action taken by its Board of Directors, to the extent legally allowed, (a) extend the time for the performance of any of the obligations or other acts of the other parties hereto,
(b) waive any inaccuracies in the representations and warranties made to such party contained herein or in any document delivered pursuant hereto and (c) waive compliance with any of the agreements or conditions for the benefit of such party
contained herein. Any agreement on the part of a party hereto to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party.
8.9 Expenses.
All documented out-of-pocket fees and expenses incurred by the Holder in connection with this Agreement, the Merger Agreement and the Stockholders and Registration Rights Agreement and the transactions contemplated hereby and thereby shall be
paid by the Company, including legal fees, accounting fees, financial advisory fees and other professional and non-professional fees and expenses, whether or not the Mergers are consummated.
8.10 Notices.
All notices, requests and other communications to any party under, or otherwise in connection with, this Agreement shall be in writing and shall be deemed to have been duly given (a) if delivered in person; (b) if transmitted by facsimile (but
only upon confirmation of transmission by the transmitting equipment); (c) if transmitted by electronic mail (“e-mail”) (but only if confirmation of receipt of such e-mail is received; provided, that any communication or confirmation
automatically generated by electronic means (such as out-of-office replies) shall not constitute such confirmation of receipt); or (d) if transmitted by national overnight courier, in each case as addressed as follows:
if to the Holder, to:
|
Ascribe Capital LLC
299 Park Avenue, 34th Floor
New York, NY 10171
|
|
Attention:
|
Lawrence First
|
|
E-mail:
|
lfirst@ascribecap.com
|
With a copy (which shall not constitute notice) to:
|
Sullivan & Cromwell LLP
125 Broad Street
New York, NY 10004
|
|
Attention:
|
Brian E. Hamilton
|
|
E-mail:
|
hamiltonb@sullcrom.com
|
if to NAM Parent or NAM, to:
|
Superior Energy Services, Inc.
1001 Louisiana Street, Suite 2900
Houston, Texas 77002
|
|
Attn:
|
William B. Masters, General Counsel
|
|
E-mail:
|
Bill.Masters@superiorenergy.com
|
With a copy (which shall not constitute notice) to:
|
Latham & Watkins LLP
811 Main Street, Suite 3700
Houston, Texas 77002
|
|
Attn:
|
Ryan Maierson and John Greer
|
|
E-mail:
|
Ryan.Maierson@lw.com; John.Greer@lw.com
|
if to the Company to:
|
Forbes Energy Services Ltd.
3000 South Business Highway 281
Alice, Texas 78332
|
|
Attention:
|
John E. Crisp
|
|
E-mail:
|
jecrisp@forbesenergyservices.com
|
With a copy (which shall not constitute notice) to:
|
Fried, Frank, Harris, Shriver & Jacobson LLP
One New York Plaza
New York, New York 10004
|
|
Attention:
|
Warren de Wied
|
|
E-mail:
|
Warren.de.Wied@friedfrank.com
|
8.11 Headings.
Headings of the Articles and Sections of this Agreement are for the convenience of the parties only and shall be given no substantive or interpretative effect whatsoever.
8.12 Interpretation.
The parties have participated jointly in negotiating and drafting this Agreement. In the event that an ambiguity or a question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no
presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement. When a reference is made in this Agreement to Articles or Sections, such reference shall be to an
Article or Section of this Agreement unless otherwise indicated. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words
“include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” References to “the date hereof” shall mean the date of this Agreement. As used in this Agreement, the
“knowledge” of the Holder means the actual knowledge of any officer of Holder after due inquiry. As used herein, (a) the term “Person” means any individual, corporation (including not-for-profit), general or limited partnership, limited
liability company, joint venture, estate, trust, association, organization, governmental entity or other entity of any kind or nature and (b) an “Affiliate” mean with respect to any Person, any other Person directly or indirectly, controlling,
controlled by, or under common control with, such Person, through one or more intermediaries or otherwise; provided, however, that solely for purposes of this
Agreement, notwithstanding anything to the contrary set forth herein, (i) neither the Company nor any of its Subsidiaries shall be deemed to be a Subsidiary or Affiliate of the Holder; (ii) any member of the Holder shall be deemed an Affiliate of
the Holder; (iii) an Affiliate of the Holder shall include any investment fund, vehicle or holding company of which the Holder or an Affiliate thereof serves as the general partner, managing member or discretionary manager or advisor; and (iv) an
Affiliate of the Holder shall not include any portfolio company or other investment of the Holder or any Affiliate of the Holder.
8.13 Counterparts.
This Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument. Each counterpart
may consist of a number of copies hereof each signed by less than all, but together signed by all of the parties hereto.
8.14 Entire
Agreement. This Agreement and the other Voting Agreements, the Confidentiality Agreements, the Merger Agreement (including the exhibits and schedules thereto), the Stockholders and Registration Rights Agreement and any other
documents delivered by the parties in connection with the Merger Agreement constitute the entire agreement among the parties with respect to the subject matter hereof and supersede all prior agreements and understandings, both written and oral,
among the parties with respect thereto.
8.15 Governing
Law. This Agreement and the rights and obligations of the parties hereto shall be governed by and construed and enforced in accordance with the laws of the
State of Delaware without regard to the conflicts of law provisions thereof that would cause the laws of any other jurisdiction to apply.
8.16 Assignment;
Binding Effect; Benefit. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto (whether by operation of law or otherwise) without the prior written consent
of the other parties. Subject to the preceding sentence, this Agreement shall be binding upon and shall inure to the benefit of and be enforceable by the parties hereto and their respective successors and assigns. Notwithstanding anything
contained in this Agreement to the contrary, except for the provisions of Article II, nothing in this Agreement, expressed or implied, is intended to confer on any person other than the parties hereto or their respective heirs,
successors, executors, administrators and assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement.
8.17 Enforcement
of Agreement. The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with its specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof, this being in addition to any other remedy to which they are
entitled at law or in equity.
8.18 Waiver.
Except as provided in this Agreement, no action taken pursuant to this Agreement, including any investigation by or on behalf of any party, or delay or omission in the exercise of any right, power or remedy accruing to any party as a result of
any breach or default hereunder by any other party shall be deemed to impair any such right power or remedy, nor will it be deemed to constitute a waiver by the party taking such action of compliance with any representations, warranties,
covenants or agreements contained in this Agreement. The waiver by any party hereto of a breach of any provision hereunder shall not operate or be construed as a waiver of any prior or subsequent breach of the same or any other provision
hereunder.
8.19 Severability.
If any provision of this Agreement is invalid, illegal or unenforceable, that provision will, to the extent possible, be modified in such a manner as to be valid, legal and enforceable but so as to retain most nearly the intent of the parties as
expressed herein, and if such a modification is not possible, that provision will be severed from this Agreement, and in either case the validity, legality and enforceability of the remaining provisions of this Agreement will not in any way be
affected or impaired thereby. If any provision of this Agreement is so broad as to be unenforceable, the provision shall be interpreted to be only so broad as is enforceable.
8.20 Consent
to Jurisdiction and Venue. Each of the parties hereto (a) consents to submit itself to the personal jurisdiction of the Delaware Court of Chancery or any federal court located in the State of Delaware in the event any dispute
arises out of this Agreement or any of the transactions contemplated herein, (b) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court and (c) agrees that it will not
bring any action relating to this Agreement or any of the transactions contemplated herein in any court other than the Delaware Court of Chancery or any federal court sitting in the State of Delaware.
8.21 Delivery
by Facsimile or Electronic Transmission. This Agreement and any signed agreement or instrument entered into in connection with this Agreement, and any amendments or waivers hereto or thereto, to the extent signed and delivered by
means of a facsimile machine or by e-mail delivery of a “.pdf” format data file, shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the
original signed version thereof delivered in person. No party hereto or to any such agreement or instrument shall raise the use of a facsimile machine or e-mail delivery of a “.pdf” format data file to deliver a signature to this Agreement or
any amendment hereto or the fact that any signature or agreement or instrument was transmitted or communicated through the use of a facsimile machine or e-mail delivery of a “.pdf” format data file as a defense to the formation of a contract and
each party hereto forever waives any such defense.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have executed or caused this Agreement to be executed in counterparts, all as of the day and
year first above written.
|
|
SUPERIOR ENERGY SERVICES, INC.
|
|
|
|
|
|
|
|
By:
|
/s/ Westervelt T. Ballard, Jr.
|
|
|
|
|
Name:
|
Westervelt T. Ballard, Jr.
|
|
|
|
|
Title:
|
Executive Vice President, Chief
Financial Officer and Treasurer
|
|
|
|
NEW NAM, INC.
|
|
|
|
|
|
|
|
By:
|
/s/ Jennifer Phan
|
|
|
|
|
Name:
|
Jennifer Phan
|
|
|
|
|
Title:
|
Secretary
|
|
|
|
FORBES ENERGY SERVICES LTD.
|
|
|
|
|
|
|
|
By:
|
/s/ John E. Crisp
|
|
|
|
|
Name:
|
John E. Crisp
|
|
|
|
|
Title:
|
Chief Executive Officer
|
|
|
|
|
|
|
|
HOLDER:
|
|
|
|
|
|
|
|
ASCRIBE CAPITAL LLC
|
|
|
|
|
|
|
|
By:
|
/s/ Lawrence First
|
|
|
|
|
Name:
|
Lawrence First
|
|
|
|
|
Title:
|
Managing Director
|
|
[
Signature Page to the Voting and Support Agreement]
FIRST AMENDMENT AND JOINDER TO VOTING AND SUPPORT AGREEMENT
This First Amendment (this “Amendment and Joinder”) is made and entered into as of December 30, 2019, by and among Superior Energy Services, Inc., a Delaware corporation
(“NAM Parent”), New NAM, Inc., a Delaware corporation (“NAM”), Forbes Energy Services Ltd., a Delaware corporation (the “Company”), Ascribe Capital LLC (“Ascribe Capital”) and Ascribe Management LLC (“Ascribe
Management” and together with NAM Parent, NAM, the Company and Ascribe Capital, the “Parties”) and amends the Voting and Support Agreement, dated as of December 18, 2019 (the “Voting and Support Agreement”), by and among NAM
Parent, NAM, the Company and Ascribe Capital and joins Ascribe Management as a party thereto. Capitalized terms not otherwise defined in this Amendment and Joinder shall have the respective meanings set forth in the Voting and Support Agreement.
WHEREAS, NAM Parent, NAM, the Company and Ascribe Capital entered into the Voting and Support Agreement in connection with the Agreement and Plan of Merger, dated as of December
18, 2019, by and among NAM Parent, NAM, the Company, Spieth Newco, Inc., Spieth Merger Sub, Inc. and Fowler Merger Sub, Inc.; and
WHEREAS, the Parties desire to enter into this Amendment and Joinder solely to clarify and amend the definition of “Holder” as used in the Voting and Support Agreement and join
Ascribe Management as a party hereto;
NOW, THEREFORE, in consideration of the foregoing, the Parties, each intending to be legally bound, hereby agree as follows:
(a) The words “Ascribe Capital LLC (the “Holder”)” on line 4 of the
Voting and Support Agreement shall be hereby amended and restated to read as follows:
“Ascribe Capital LLC and Ascribe Management LLC (together, the “Holder”)”.
2. Joinder. Ascribe Management hereby agrees that upon the execution of
this Amendment and Joinder, it shall become a party to the Voting and Support Agreement and shall be fully bound by, and subject to, all of the covenants, terms and conditions of the Voting and Support Agreement as though an original party
thereto and shall be deemed to be, together with Ascribe Capital, the “Holder” for all purposes thereof.
3. Counterparts. This Voting and Support Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument. Each counterpart may consist of a number of copies
hereof each signed by less than all, but together signed by all of the parties hereto.
4. Full Force and Effect. Except as specifically amended hereby, the
Parties hereby acknowledge and agree that all of the terms and provisions set forth in the Voting and Support Agreement remain in full force and effect in all respects.
5. Governing Law. This Amendment and Joinder and the rights and
obligations of the Parties hereto shall be governed by and construed and enforced in accordance with the laws of the State of Delaware without regard to the conflicts of law provisions thereof that would cause the laws of any other jurisdiction
to apply.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have executed or caused this Amendment and Joinder to be executed in
counterparts, all as of the day and year first written above.
|
|
SUPERIOR ENERGY SERVICES, INC.
|
|
|
|
|
|
|
|
By:
|
/s/ Westy Ballard
|
|
|
|
|
Name:
|
Westy Ballard
|
|
|
|
|
Title:
|
CFO
|
|
|
|
NEW NAM, INC.
|
|
|
|
|
|
|
|
By:
|
/s/ Jennifer N. Phan
|
|
|
|
|
Name:
|
Jennifer Phan
|
|
|
|
|
Title:
|
Secretary
|
|
|
|
FORBES ENERGY SERVICES LTD.
|
|
|
|
|
|
|
|
By:
|
/s/ John E. Crisp
|
|
|
|
|
Name:
|
John E. Crisp
|
|
|
|
|
Title:
|
Chief Executive Officer
|
|
|
|
|
|
|
|
ASCRIBE CAPITAL LLC
|
|
|
|
|
|
|
|
By:
|
/s/ Lawrence First
|
|
|
|
|
Name:
|
Lawrence First
|
|
|
|
|
Title:
|
Managing Director and CIO
|
|
|
|
ASCRIBE MANAGEMENT LLC
|
|
|
|
|
|
|
|
By:
|
/s/ Lawrence A. First
|
|
|
|
|
Name:
|
Lawrence First
|
|
|
|
|
Title:
|
Managing Director and CIO
|
|
[Signature Page to Amendment and Joinder to Voting and Support Agreement]
EXHIBIT 7.2
EXCHANGE AND CONTRIBUTION AGREEMENT
THIS EXCHANGE AND CONTRIBUTION AGREEMENT (this “Agreement”) is made
and entered into as of December 18, 2019, by and among: (i) Forbes Energy Services Ltd., a Delaware corporation (“Fowler”); (ii) Spieth Newco, Inc., a Delaware corporation (“Holdco”); (iii) Ascribe Capital LLC, a Delaware limited liability company (“Ascribe”); and (iv) Solace Capital Partners, L.P., a Delaware limited liability company (“Solace” and together with Ascribe, the “Investors”). Capitalized terms used but not defined herein shall have the meaning ascribed thereto in the Merger Agreement
(as defined below).
WHEREAS, pursuant to that certain Agreement and Plan of Merger (as
it may be amended or modified from time to time in accordance with its terms, the “Merger Agreement”), entered into as of the date hereof, by and among (i) Superior Energy Services, Inc., a Delaware
corporation (“Spieth”); (ii) New NAM, Inc., a Delaware corporation (“NAM”); (iii) Fowler; (iv) Holdco; (v) Spieth Merger Sub, Inc., a Delaware corporation and a
wholly owned subsidiary of Holdco (“NAM Merger Sub”); and (vi) Fowler Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Holdco (“Fowler Merger
Sub”), Fowler Merger Sub shall be merged with and into Fowler and the separate corporate existence of Fowler Merger Sub will cease, NAM Merger Sub shall be merged with and into NAM and the separate corporate existence of NAM Merger
Sub will cease, and Fowler and NAM will continue as the surviving entities of the Mergers and shall become wholly owned subsidiaries of Holdco;
WHEREAS, on March 4, 2019, Fowler issued $51,767,900 aggregate
principal amount of 5.00% Subordinated Convertible PIK Notes due June 30, 2020 under the Indenture by and between Fowler and Wilmington Trust, National Association as Trustee (the “Fowler PIK Notes”);
WHEREAS, Fowler and its Affiliates have outstanding indebtedness
pursuant to the Loan and Security Agreement, dated as of April 13, 2017, by and among Fowler, Forbes Energy Services LLC, Forbes Energy International, LLC, TX Energy Services, LLC, C.C. Forbes, LLC, Cretic Energy Services, LLC, Wilmington
Trust, National Association and the lenders from time to time thereto, as amended by Amendment No. 1 to Loan and Security Agreement and Pledge and Security Agreement, dated as of November 16, 2018 and Amendment No. 2 to Loan and Security
Agreement, dated as of May 28, 2019 (the “Fowler Term Loan”);
WHEREAS, as of the date hereof, Ascribe and its Affiliates hold
1,286,306 shares of Fowler Common Stock, $27,971,608.00 principal amount (plus accrued interest since July 1, 2019) of the Fowler PIK Notes and $15,765,661.22 (plus accrued interest since September 30, 2019) under the Fowler Term Loan and
Solace and its Affiliates hold 947,268 shares of Fowler Common Stock, $20,607,152.76 principal amount (plus accrued interest since July 1, 2019) of the Fowler PIK Notes and $14,551,890.98 (plus accrued interest since September 30, 2019) under
the Fowler Term Loan;
WHEREAS, subject to the terms and conditions of this Agreement, each
Investor and Fowler desire to exchange an equal amount of Fowler PIK Notes (including all accrued interest thereon) then held by (i) Ascribe and its Affiliates and (ii) Solace and its Affiliates (such notes together, the “Exchange Notes”) for such number of shares of Fowler Common Stock, which will be issued and delivered by Fowler to the Investors, that will result in the Investors and their Affiliates holding an aggregate
amount of Fowler Common Stock representing, after such exchange, 51% of the voting power of the outstanding shares of Fowler Common Stock entitled to vote in respect of the matters set forth in Section 7.04 of the Merger Agreement (the “Exchange Shares”), with the Exchange Shares valued at the Fowler Reference Price (as defined below), and such exchange being effective after the satisfaction of the closing conditions set forth in Sections
8.01(e) and 8.01(f) of the Merger Agreement and at least three (3) Business Days prior to the Fowler Record Date (the “PIK Exchange Time”) (such exchange, the “Fowler
PIK Exchange”);
WHEREAS, subject to the terms and conditions of this Agreement,
each Investor desires to contribute to Holdco all Fowler PIK Notes (including all accrued interest thereon) then held by it as of immediately prior to the Closing (such notes together, the “Contribution Notes”),
and Holdco, in consideration for the contribution of such Contribution Notes, desires to issue to the Investors the applicable number of shares of Holdco Class A Common Stock at the Holdco Reference Price (as defined below) (such shares
together, the “Contribution Shares”), with such contribution and issuance being effective immediately prior to the Effective Time (such contribution, the “Fowler PIK
Contribution”);
WHEREAS, subject to the terms and conditions of this Agreement,
each Investor desires to contribute to Holdco all amounts owed to it pursuant to the Fowler Term Loan as of immediately prior to the Closing (such amounts together, the “Term Loan Amounts”) and Holdco,
in consideration for the contribution of such Term Loan Amounts, desires to issue to the Investors the applicable number of shares of Holdco mandatory convertible preferred shares having the terms set forth on Annex A (such shares together,
the “Mandatory Convertible Preferred Shares”), with such contribution and issuance being effective immediately prior to the Effective Time (such contribution, the “Fowler
Term Loan Contribution”); and
WHEREAS, the parties to this Agreement intend that the Intended Tax
Treatment (as defined in Recital E of the Merger Agreement) will apply.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Exchange and Contribution Transactions.
(a) Subject to the terms and conditions of this Agreement and the satisfaction of the conditions set forth in Sections 8.01(e) and 8.01(f) of the Merger Agreement, each Investor (on behalf of
itself and its Affiliates) and Fowler agree to the exchange of the Exchange Notes, free and clear of all Liens, with the Exchange Shares valued at the Fowler Reference Price, such that each Investor and its Affiliates (in such allocations
as specified by each Investor) receive one half of the Exchange Shares, with such exchange, and the cancellation and forgiveness of all indebtedness under such Exchange Notes being effective at the PIK Exchange Time. The “Fowler
Reference Price” shall be $0.13365 per share.
(b) Subject to the terms and conditions of this Agreement and the satisfaction or waiver of the conditions set forth in Section 8.01 of the Merger Agreement, each Investor agrees (on behalf of
itself and its Affiliates) to contribute the Contribution Notes free and clear of all Liens, to Holdco and Holdco agrees to issue the Contribution Shares at the Holdco Reference Price to each Investor and its Affiliates (in such allocations
as specified by each Investor) pro rata to the value of the Contribution Notes contributed by such Investor and its Affiliates (in such allocations as
specified by each Investor), with such contribution of all indebtedness under such Contribution Notes and issuance being effective immediately prior to the Effective Time. The “Holdco Reference Price” shall be $30.5327 per share,
subject to any adjustments required to reflect any changes to the Fowler Exchange Ratio prior to the Closing. Notwithstanding the foregoing, if the Fowler Exchange Ratio at Closing is different from the Fowler Exchange Ratio at the PIK
Exchange Time, the number of Contribution Shares to be issued under this Section 1(b) shall be reduced or increased such that the number of shares of Holdco Class A Common Stock that each Investor and its Affiliates hold immediately
following the Closing is the same as what it would have held if the Fowler PIK Exchange had been made applying the Fowler Exchange Ratio in effect as of the Closing.
(c) Subject to the terms and conditions of this Agreement and the satisfaction or waiver of the conditions set forth in Section 8.01 of the Merger Agreement, each Investor agrees (on behalf of
itself and its Affiliates) to contribute the Term Loan Amount to Holdco and Holdco agrees to issue to each Investor and its Affiliates (in such allocations as specified by each Investor) such number of Mandatory Convertible Preferred Shares
having an aggregate liquidation preference equal to each Investor’s Term Loan Amount, with such contribution and issuance relating to the Term Loan Amount being effective immediately prior to the Effective Time.
2. Meeting of Fowler Stockholders.
(a) Notwithstanding anything to the
contrary in the Merger Agreement, Fowler shall not fix a Record Date that occurs less than three (3) business days following the satisfaction or, solely with the prior written consent of both Investors, waiver by Fowler, of each of the
closing conditions set forth in Sections 8.01(e) and 8.01(f) of the Merger Agreement.
3. Representations and Warranties of the Investors. Each Investor represents and warrants severally, and not jointly, to Fowler and Holdco that:
(a) It or its Affiliates (i) is the sole record and beneficial owner of such Investor’s Exchange Notes and (ii) has good and valid title to such Investor’s Exchange Notes, free and clear of any
Liens. Upon delivery of the Exchange Notes by such Investor as contemplated by Section 1, such Investor will transfer to Fowler good and valid title to such Investor’s Exchange Notes, free and clear of any Liens.
(b) It or its Affiliates (i) is the sole record and beneficial owner of such Investor’s Contribution Notes free and clear of any Liens and (ii) is the registered holder of indebtedness to such
Investor’s Term Loan Amounts. Upon delivery of the Contribution Notes as contemplated by Section 1(b), such Investor will transfer to Holdco good and valid title to such Investor’s Contribution Notes, free and clear of any
Liens.
(c) (i) The execution, delivery and performance by such Investor of this Agreement will not (i) violate any order, judgment or decree applicable to such Investor or any of its Affiliates or (ii)
conflict with, or result in a breach or default under, any agreement or instrument to which such Investor or any of its Affiliates is a party or any term or condition of its limited liability company agreement, except where such conflict,
breach or default would not reasonably be expected to, individually or in the aggregate, have an adverse effect on such Investor’s ability to satisfy its obligations hereunder.
(d) Such Investor is a limited liability company duly organized, validly existing and in good standing under the Laws of its jurisdiction of formation. Such Investor has full power and authority
and is duly authorized to make, enter into and carry out the terms of this Agreement and to perform its obligations hereunder. This Agreement has been duly and validly executed and delivered by such Investor and (assuming due
authorization, execution and delivery by Fowler, Holdco and such other Investor) constitutes a valid and binding agreement of such Investor, enforceable against such Investor in accordance with its terms (except in all cases as such
enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other Applicable Laws of general applicability relating to or affecting creditors’ rights and to general principles of equity regardless of whether such
enforceability is considered in a proceeding in equity or at Applicable Law), and no other action is necessary to authorize the execution and delivery by such Investor or the performance of such Investor’s obligations hereunder.
4. Representations and Warranties of Fowler. Fowler represents and warrants to each Investor that:
(a) The Exchange Shares will have been duly authorized prior to the PIK Exchange Time and, when so issued, will have been validly issued, fully-paid, free and clear of any and all Encumbrances.
(b) The execution, delivery and performance by Fowler of this Agreement will not (i) violate any order, judgment or decree applicable to Fowler or any of its Affiliates or (ii) conflict with, or
result in a breach or default under, any agreement or instrument to which Fowler or any of its Affiliates is a party or any term or condition of its Organizational Documents, except where such conflict, breach or default would not
reasonably be expected to, individually or in the aggregate, have an adverse effect on Fowler’s ability to satisfy its obligations hereunder.
(c) Fowler is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware. Fowler has full power and authority and is duly authorized to make,
enter into and carry out the terms of this Agreement and to perform its obligations hereunder. This Agreement has been duly and validly executed and delivered by Fowler and (assuming due authorization, execution and delivery by Holdco and
the Investors) constitutes a valid and binding agreement of Fowler, enforceable against Fowler in accordance with its terms (except in all cases as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance, fraudulent transfer and other Applicable Laws of general applicability relating to or affecting creditors’ rights and to general principles of equity regardless of whether such enforceability is considered in a
proceeding in equity or at Applicable Law), and no other action is necessary to authorize the execution and delivery by Fowler or the performance of Fowler’s obligations hereunder.
5. Representations and Warranties of Holdco. Holdco represents and warrants to each Investor that:
(a) The Contribution Shares and the
Mandatory Convertible Preferred Shares will have been duly authorized prior to the Contribution Time and, when so issued, will have been validly issued, fully-paid, free and clear of any and all Encumbrances.
(b) The execution, delivery and performance by Holdco of this Agreement will not (i) violate any order, judgment or decree applicable to Holdco or any of its Affiliates or (ii) conflict with, or
result in a breach or default under, any agreement or instrument to which Holdco or any of its Affiliates is a party or any term or condition of its Organizational Documents, except where such conflict, breach or default would not
reasonably be expected to, individually or in the aggregate, have an adverse effect on Holdco’s ability to satisfy its obligations hereunder.
(c) Holdco is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. Holdco has full power and authority and is duly authorized to make, enter
into and carry out the terms of this Agreement and to perform its obligations hereunder. This Agreement has been duly and validly executed and delivered by Holdco and (assuming due authorization, execution and delivery by Fowler and the
Investors) constitutes a valid and binding agreement of Holdco, enforceable against Holdco in accordance with its terms (except in all cases as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance, fraudulent transfer and other Applicable Laws of general applicability relating to or affecting creditors’ rights and to general principles of equity regardless of whether such enforceability is considered in a
proceeding in equity or at Applicable Law), and no other action is necessary to authorize the execution and delivery by Holdco or the performance of Holdco’s obligations hereunder.
6. Termination of Agreement. This Agreement shall terminate at the earlier of (a) the date the Merger Agreement is validly terminated in accordance with its terms or (b) the Effective
Time. The termination of this Agreement shall not relieve (i) any party hereto from any liability of such party to any other party incurred prior to such termination or (ii) any party hereto from any liability to any other party arising
out of or in connection with a breach of this Agreement.
7. Notices.
Any notice provided for in this Agreement shall be in writing and shall be deemed to have been duly given (a) on the date delivered or sent if being delivered by hand or sent by email (providing confirmation of receipt), (b) five (5) Business
Days after being mailed certified return receipt requested with postage paid, (c) one (1) Business Day after being couriered by overnight receipted courier service or (d) on the date of rejection or refusal of any attempted delivery by one of
the preceding methods (or such other address as it may from time to time designate in writing). Any notice provided pursuant to this Section 7 shall be delivered at the addresses below.
Notices
to Fowler or Holdco:
|
Forbes Energy Services Ltd.
3000 South Business Highway 281
Alice, Texas 78332
|
|
|
Attention:
|
John E. Crisp
|
|
E-mail:
|
jecrisp@forbesenergyservices.com
|
With a copy to:
|
Fried, Frank, Harris, Shriver & Jacobson LLP
One New York Plaza
New York, New York 10004
|
|
Attention:
|
Warren de Wied
|
|
E-mail:
|
Warren.de.Wied@friedfrank.com
|
Notices to Ascribe:
|
Ascribe Capital LLC
299 Park Avenue, 34th Floor
New York, NY 10171
|
|
Attention:
|
Lawrence First
|
|
E-mail:
|
lfirst@ascribecap.com
|
With a copy to:
|
Sullivan & Cromwell LLP
125 Broad Street
New York, NY 10004
|
|
Attention:
|
Brian E. Hamilton
|
|
E-mail:
|
hamiltonb@sullcrom.com
|
Notices to Solace:
|
Solace Capital Partners, L.P.
11111 Santa Monica Boulevard, Suite 1275
Los Angeles, CA 90025
|
|
Attention:
|
Xavier Corzo
|
|
E-mail:
|
XCorzo@solacecap.com
|
With a copy to:
|
Sullivan & Cromwell LLP
125 Broad Street
New York, NY 10004
|
|
Attention:
|
Brian E. Hamilton
|
|
E-mail:
|
hamiltonb@sullcrom.com
|
Notices shall be deemed to have been given hereunder when so delivered or mailed.
8. Counterparts. This Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument. Each counterpart may consist of a number of copies hereof each signed by less
than all, but together signed by all of the parties hereto.
9. Entire Agreement. This Agreement, the Merger Agreement (including the exhibits and
schedules thereto), the Stockholders and Registration Rights Agreement, the Voting Agreements and any other documents delivered by the parties in connection with the Merger Agreement constitute the entire agreement among the parties with
respect to the subject matter hereof and supersede all prior agreements and understandings, both written and oral, among the parties with respect thereto.
10. Governing Law. This Agreement and the rights and obligations of the parties hereto
shall be governed by and construed and enforced in accordance with the laws of the State of Delaware without regard to the conflicts of law provisions thereof that would cause the laws of any other jurisdiction to apply.
11. Assignment; Binding Effect; Benefit. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the parties hereto (whether by operation of law or otherwise) without the prior written consent of the other parties. Subject to the preceding sentence, this Agreement
shall be binding upon and shall inure to the benefit of and be enforceable by the parties hereto and their respective successors and assigns.
12. Third Party Beneficiaries. Spieth and NAM are third party beneficiaries of this
Agreement, subject to the limitations set forth in Section 13. Fowler, Holdco, Ascribe and Solace acknowledge that each of Spieth and NAM has specifically relied on this Agreement in determining to enter into the Merger Agreement.
This Agreement may only be enforced against Fowler, Holdco, Ascribe and Solace by Spieth or NAM pursuant to Section 13, and for no other purpose.
13. Enforcement or Agreement. The parties hereto agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not performed in accordance with its specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to an injunction or injunctions
to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof, this being in addition to any other remedy to which they are entitled at law or in equity. In addition, the parties acknowledge and agree that
Spieth and NAM shall be entitled to specific performance of the parties obligations pursuant to this Agreement, and in connection with such specific performance, Spieth and NAM shall not be obligated to establish proof of actual damages or
irreparable harm or be obligated to secure or post any bond in connection with such equitable relief.
14. Waiver. Except as provided in this Agreement, no action taken pursuant to this
Agreement, including any investigation by or on behalf of any party, or delay or omission in the exercise of any right, power or remedy accruing to any party as a result of any breach or default hereunder by any other party shall be deemed to
impair any such right power or remedy, nor will it be deemed to constitute a waiver by the party taking such action of compliance with any representations, warranties, covenants or agreements contained in this Agreement. The waiver by any
party hereto of a breach of any provision hereunder shall not operate or be construed as a waiver of any prior or subsequent breach of the same or any other provision hereunder.
15. Severability. If any provision of this Agreement is invalid, illegal or
unenforceable, that provision will, to the extent possible, be modified in such a manner as to be valid, legal and enforceable but so as to retain most nearly the intent of the parties as expressed herein, and if such a modification is not
possible, that provision will be severed from this Agreement, and in either case the validity, legality and enforceability of the remaining provisions of this Agreement will not in any way be affected or impaired thereby. If any provision of
this Agreement is so broad as to be unenforceable, the provision shall be interpreted to be only so broad as is enforceable.
16. Consent to Jurisdiction and Venue. Each of the parties hereto (a) consents to
submit itself to the personal jurisdiction of the Delaware Court of Chancery or any federal court located in the State of Delaware in the event any dispute arises out of this Agreement or any of the transactions contemplated herein, (b)
agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court and (c) agrees that it will not bring any action relating to this Agreement or any of the transactions
contemplated herein in any court other than the Delaware Court of Chancery or any federal court sitting in the State of Delaware.
17. Delivery by Facsimile or Electronic Transmission. This Agreement and any signed
agreement or instrument entered into in connection with this Agreement, and any amendments or waivers hereto or thereto, to the extent signed and delivered by means of a facsimile machine or by e-mail delivery of a “.pdf” format data file,
shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. No party hereto or to any
such agreement or instrument shall raise the use of a facsimile machine or e-mail delivery of a “.pdf” format data file to deliver a signature to this Agreement or any amendment hereto or the fact that any signature or agreement or instrument
was transmitted or communicated through the use of a facsimile machine or e-mail delivery of a “.pdf” format data file as a defense to the formation of a contract and each party hereto forever waives any such defense.
18. Recitals. The recitals to this Agreements are an integral part of this Agreement
and shall be deemed to be a part of the text of this Agreement as if fully set forth herein.
[signature pages follow]
IN WITNESS WHEREOF, the parties hereto have executed this Exchange and Contribution Agreement as of the date first written
above.
|
FORBES ENERGY SERVICES LTD.
|
|
|
|
|
|
|
|
By:
|
/s/ John E. Crisp
|
|
|
|
|
Name:
|
John E. Crisp
|
|
|
|
|
Title:
|
Chief Executive Officer
|
|
|
|
SPIETH NEWCO, INC.
|
|
|
|
|
|
|
|
By:
|
/s/ John E. Crisp
|
|
|
|
|
Name:
|
John E. Crisp
|
|
|
|
|
Title:
|
President
|
|
|
|
ASCRIBE CAPITAL LLC
|
|
|
|
|
|
|
|
By:
|
/s/ Lawrence First
|
|
|
|
|
Name:
|
Lawrence First
|
|
|
|
|
Title:
|
Managing Director
|
|
|
|
SOLACE CAPITAL PARTNERS, L.P.
|
|
|
|
|
|
|
|
By:
|
/s/ Brett Wyard
|
|
|
|
|
Name:
|
Brett Wyard
|
|
|
|
|
Title:
|
Authorized Signatory
|
|
[Signature Page to Exchange and Contribution Agreement]
ANNEX A
Mandatory Convertible Preferred Shares Term Sheet
Register to chat with like-minded investors on our interactive forums.
Hot Features
Premium
