Item 1.01 - Entry into a Material Definitive Agreement.
Merger Agreement
On
Prior to the effective time of the Mergers (the "Effective Time"), Superior and
certain of its subsidiaries will enter into a separation agreement (the
"Separation Agreement") setting forth the terms of the consolidation of
Superior's
At the Effective Time, the holders of shares of common stock, par value
Each award of restricted stock units and performance stock units of the Company will be treated as follows:
• each outstanding award of a restricted stock unit granted under the Company's equity compensation plans (the "Forbes Stock Plans") that is subject to time-based vesting requirements will immediately vest and thereupon be cancelled and converted into a share of Forbes Common Stock. The holder of each such share of Forbes Common Stock will have the right to receive the Forbes Merger Consideration; and • each outstanding award of a restricted stock unit granted under the Forbes Stock Plans that is subject to performance-based vesting requirements will immediately vest and be cancelled and converted into a share of Forbes Common Stock. The holder of each such share of Forbes Common Stock shall have the right to receive the Forbes Merger Consideration.
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Prior to the Effective Time, the Company will cause the aggregate principal
amount of its 5.00% Subordinated Convertible PIK Notes due
Pursuant to the terms of the Exchange and Contribution Agreement, dated effective as of the date of the Merger Agreement, by and among the Company, Holdco, Ascribe and Solace (the "Exchange and Contribution Agreement"), immediately prior to the record date for the special meeting of stockholders of the Company to be held to approve the Merger Agreement, Ascribe and Solace will exchange an equal amount of Forbes Convertible PIK Notes (including all accrued interest thereon) then held by Ascribe and Solace (the "Exchange Notes") for such number of shares of Forbes Common Stock (the "Exchange Shares"), that will result in Ascribe and Solace collectively holding an aggregate amount of Forbes Common Stock representing 51% of the voting power of the outstanding shares of Forbes Common Stock.
Immediately prior to the Effective Time, (i) the balance of the aggregate
principal amount of Forbes Convertible PIK Notes that is held by Ascribe and
Solace (the "Contribution Notes") will be contributed to Holdco in exchange for
shares of Holdco Class A Common Stock (the "Contribution Shares") and (ii) the
portion of the aggregate principal amount outstanding under the Company's
existing term loan that is held by Ascribe and Solace as of the date of the
Merger Agreement, together with accrued interest thereon, will be exchanged for
approximately
The foregoing summary of the Exchange and Contribution Agreement does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Exchange and Contribution Agreement, a copy of which is attached hereto as Exhibit 1.1, and incorporated into this Current Report on Form 8-K by reference in its entirety.
The Company has agreed, subject to certain exceptions with respect to unsolicited proposals, not to directly or indirectly solicit competing acquisition proposals or to enter into discussions concerning, or provide confidential information in connection with, any unsolicited alternative acquisition proposals. However, if the Company receives from any person an unsolicited, written and bona fide acquisition proposal that did not result from a material breach of the non-solicitation provisions of the Merger Agreement and the Company's board of directors concludes in good faith, after consultation with its financial advisors and outside legal counsel, that such unsolicited, written and bona fide acquisition proposal constitutes, or could reasonably be expected to result in, a superior offer, the Company may furnish non-public information regarding the Company or any of its subsidiaries to such person and engage in discussions and negotiations with such person; provided that the Company provides notice and furnishes any non-public information provided to the maker of the acquisition proposal to Superior substantially concurrently with providing such non-public information to the maker of the acquisition proposal.
The completion of the Mergers is subject to the satisfaction or waiver of
customary closing conditions, including: (i) adoption of the Merger Agreement by
holders of at least a majority of the shares of Forbes Common Stock outstanding
as of the record date for the meeting of Forbes shareholders; (ii) absence of
any court order or regulatory injunction prohibiting completion of the Mergers,
(iii) expiration or termination of review under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, (iv) effectiveness of Holdco's
registration statement on Form S-4 to register the Holdco Common Stock to be
issued in the Mergers, (v) the Company's net debt (which for this purpose refers
to borrowings under the Company's credit agreement less cash and cash
equivalents, as determined in accordance with the Merger Agreement) not
exceeding
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The Company and Superior have made customary representations and warranties in
the Merger Agreement. The Merger Agreement also contains customary covenants and
agreements, including covenants and agreements relating to (i) the conduct of
each of the Company's business, Superior's business and the Superior
The Merger Agreement contains certain termination rights for the Company and
Superior. The Merger Agreement further provides that, upon termination of the
Merger Agreement under certain circumstances, (i) the Company may be required to
pay to Superior a termination fee equal to
The foregoing summary does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Merger Agreement, a copy of which is attached hereto as Exhibit 2.1, and incorporated into this Current Report on Form 8-K by reference in its entirety. It is not intended to provide any other factual information about the Company, Superior, Holdco or their respective subsidiaries and affiliates. The Merger Agreement contains representations and warranties by each of the parties to the Merger Agreement, which were made only for purposes of the Merger Agreement and as of specified dates. The representations, warranties and covenants in the Merger Agreement were made solely for the benefit of the parties to the Merger Agreement; may be subject to limitations agreed upon by the contracting parties, including being qualified by confidential disclosures made for the purposes of allocating contractual risk between the parties to the Merger Agreement instead of establishing these matters as facts; and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors. Investors should not rely on the representations, . . .
Item 9.01 - Financial Statements and Exhibits
(d) Exhibits.
1.1* Exchange and Contribution Agreement, dated effective as ofDecember 18, 2019 , by and among theForbes Energy Services Ltd. ,Spieth Newco, Inc. ,Ascribe Capital LLC andSolace Capital Partners, L.P. 2.1* Agreement and Plan of Merger, dated as ofDecember 18, 2019 , by and among Superior Energy Services, Inc.,New NAM, Inc. ,Forbes Energy Services Ltd ,Spieth Newco, Inc. ,Spieth Merger Sub, Inc. andFowler Merger Sub, Inc. 10.1 Voting and Support Agreement, dated as ofDecember 18, 2019 , by and among Superior Energy Services, Inc.,New NAM, Inc. ,Forbes Energy Services Ltd. ,Ascribe Capital LLC and each of the other parties thereto. 10.2 Voting and Support Agreement, dated as ofDecember 18, 2019 , by and among Superior Energy Services, Inc.,New NAM, Inc. ,Forbes Energy Services Ltd. ,Solace Capital Partners, L.P. and each of the other parties thereto. 10.3 Voting and Support Agreement, dated as ofDecember 18, 2019 , by and among Superior Energy Services, Inc.,New NAM, Inc. ,Forbes Energy Services Ltd. andJohn E. Crisp . 10.4 Voting and Support Agreement, dated as ofDecember 18, 2019 , by and among Superior Energy Services, Inc.,New NAM, Inc. ,Forbes Energy Services Ltd. andL. Melvin Cooper . * Schedules and exhibits to this Exhibit omitted pursuant to Regulation S-K Item 601(b)(2). The Company agrees to furnish supplementally a copy of any omitted schedule or exhibit to theSEC upon request.
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