VOTING AGREEMENT
Exhibit 10.2
This VOTING AGREEMENT (this “Agreement”), dated as of April 20, 2008, is by and between Grey
Wolf, Inc., a Texas corporation (“Grey Wolf”), and the undersigned holder (the “Affiliate”) of
shares or options to acquire shares of common stock of Basic Energy Services, Inc., a Delaware
corporation (“Basic”). Capitalized terms used and not defined herein shall have the respective
meanings ascribed to them in the Merger Agreement referenced below.
RECITALS:
A. Basic, Grey Wolf and Horsepower Holdings, Inc. (“Holdings”) have entered into an Agreement
and Plan of Merger dated April 20, 2008 (as the same may be amended from time to time, the “Merger
Agreement”) pursuant to which Basic and Grey Wolf will merge with and into Holdings, with Holdings
surviving the mergers, on the terms and subject to the conditions set forth in the Merger
Agreement.
B. As of the date hereof, Affiliate “beneficially owns” (as such term is defined in Rule 13d-3
under the Exchange Act) and Affiliate is entitled to dispose of (or to direct the disposition of)
and to vote (or to direct the voting of) the number of shares of common stock, par value of $0.01
per share, of Basic (the “Basic Common Stock”) set forth beneath the Affiliate’s name on the
signature page hereto, as such shares may be adjusted by stock dividend, stock split,
recapitalization, combination, merger, consolidation, reorganization or other change in the capital
structure of Basic affecting the Basic Common Stock (such shares of Basic Common Stock, plus any
other shares of Basic Common Stock the voting power over which is acquired by Affiliate and less
any shares of Basic Common Stock the entire beneficial ownership in, including all voting rights
with respect to, are disposed of by Affiliate, in each case during the period from and including
the date hereof through and including the date on which this Agreement is terminated in accordance
with its terms, are collectively referred to herein as Affiliate’s “Subject Shares”).
C. As an inducement to the willingness of Grey Wolf to enter into the Merger Agreement, and as
an inducement and in consideration therefor, Affiliate has agreed to enter into this Agreement.
NOW, THEREFORE, intending to be legally bound, the parties agree as follows:
1. Agreement to Vote the Subject Shares. Affiliate, solely in Affiliate’s capacity as a
stockholder of Basic, hereby agrees that during the period commencing on the date hereof and
continuing until the termination of this Agreement (such period, the “Voting Period”), at any
meeting (or any adjournment or postponement thereof) of the holders of any class or classes of the
capital stock of Basic, however called, or in connection with any written consent
of the holders of any class or classes of the capital stock of Basic, Affiliate shall vote (or
cause to be voted) Affiliate’s Subject Shares in favor of the approval and adoption of the terms of
the Basic Proposals and each of the other transactions contemplated by the Merger Agreement (and
any actions required in furtherance thereof) at every meeting of the stockholders of Basic (or in
connection with any written consent) at which such matters are considered and at every adjournment
thereof. Any such vote shall be cast or consent shall be given by Affiliate in accordance with
such procedures relating thereto as shall ensure that it is duly counted for purposes of
determining that a quorum is present and for purposes of recording the results of such vote or
consent. Affiliate agrees not to enter into any agreement, letter of intent, agreement in
principle or understanding with any person that violates or conflicts with or could reasonably be
expected to violate or conflict with the provisions and agreements contained in this Agreement or
the Merger Agreement; provided, however, that nothing in this Agreement shall be deemed to prevent
Affiliate from making a bona fide disposition of the entire beneficial ownership in, including all
voting rights with respect to, any or all of the Subject Shares (a “Permitted Disposition”). For
the avoidance of doubt, this Agreement is intended to constitute a voting agreement entered into
under Section 218(c) of the Delaware General Corporation Law for the duration of the Voting Period.
2. Grant of Irrevocable Proxy.
(a) Affiliate hereby irrevocably (to the fullest extent permitted by law) grants to, and
appoints, Grey Wolf and each of its executive officers and any of them, in their capacities as
officers of Grey Wolf (the “Grantees”), as Affiliate’s proxy and attorney-in-fact (with full power
of substitution and resubstitution), for and in the name, place and stead of Affiliate, to vote the
Subject Shares, to instruct nominees or record holders to vote the Subject Shares, or grant a
consent or approval or dissent or disapproval in respect of such Subject Shares in accordance with
Section 1 hereof and, in the discretion of the Grantees with respect to any proposed
adjournments or postponements of any meeting of stockholders of Basic at which any of the matters
described in Section 1 hereof is to be considered.
(b) Affiliate represents that any proxies heretofore given in respect of the Subject Shares
that may still be in effect are not irrevocable, and such proxies are hereby revoked.
(c) Affiliate hereby affirms that the irrevocable proxy set forth in this Section 2 is
given in connection with the execution of the Merger Agreement, and that such irrevocable proxy is
given to secure the performance of the duties of Affiliate under this Agreement. Affiliate hereby
further affirms that the irrevocable proxy is coupled with an interest and may under no
circumstances be revoked. Affiliate hereby ratifies and confirms all that such irrevocable proxy
may lawfully do or cause to be done by virtue hereof. Such irrevocable proxy is executed and
intended to be irrevocable in accordance with the provisions of
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Section 212 of the Delaware General Corporation Law. Notwithstanding this Section
2(c), the proxy granted by Affiliate shall be revoked upon termination of this Agreement in
accordance with its terms.
(d) The Grantees may not exercise this irrevocable proxy on any other matter except as
provided above. Affiliate shall retain at all times the right to vote the Subject Shares in
Affiliate’s sole discretion and without any other limitation on all matters other than those set
forth in Section 1 that are at any time or from time to time presented for consideration to
Basic’s stockholders generally.
(e) Grey Wolf may terminate this proxy with respect to Affiliate at any time at its sole
election by written notice provided to Affiliate.
3. Covenants. Except for pledges in existence as of the date hereof, Affiliate agrees that,
except as contemplated by the terms of this Agreement, Affiliate shall not (a) grant any proxies or
powers of attorney in respect of the Subject Shares, deposit any of Affiliate’s Subject Shares into
a voting trust or enter into a voting agreement with respect to any of Affiliate’s Subject Shares;
or (b) take any action that would have the effect of preventing, impeding, interfering with or
adversely affecting Affiliate’s ability to perform Affiliate’s respective obligations under this
Agreement, other than a Permitted Disposition. Notwithstanding the foregoing, nothing herein shall
prevent Affiliate from assigning or transferring any Subject Shares beneficially owned by Affiliate
to any trust, estate, family partnership, foundation (whether family, private or public) or other
charitable organization (a “Permitted Transferee”) if such Permitted Transferee agrees in writing
to hold any Subject Shares subject to all of the provisions of this Agreement as Affiliate
hereunder.
4. Representations and Warranties of Affiliate. Affiliate hereby represents and warrants to
Grey Wolf as follows:
(a) Due Authority. Affiliate has the capacity to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. Affiliate hereby represents and warrants to Grey
Wolf as follows: if Affiliate is an entity, Affiliate is duly organized and validly existing under
the laws of the jurisdiction of its organization, and Affiliate has all necessary power and
authority to execute and deliver this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the consummation of the transactions
contemplated hereby by Affiliate have, if Affiliate is an entity, been duly authorized by all
necessary action on the part of Affiliate, and, assuming its due authorization, execution and
delivery by Grey Wolf, constitutes a valid and binding obligation of Affiliate, enforceable against
Affiliate in accordance with its terms, except to the extent that its enforceability may be subject
to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the
enforcement of creditors’ rights generally and by equitable principles.
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(b) Ownership of Shares. Affiliate legally or beneficially owns the number of shares of Basic
Common Stock set forth beneath Affiliate’s name on the signature page hereto. The number of shares
of Basic Common Stock set forth beneath Affiliate’s name on the signature page hereto are all of
the shares of Basic Common Stock legally or beneficially owned by Affiliate. Affiliate has sole
voting power and sole power of disposition, in each case with respect to all of the shares of Basic
Common Stock set forth beneath Affiliate’s name on the signature page hereto, with no limitations,
qualifications or restrictions on such rights, subject only to applicable securities laws and the
terms of this Agreement and as otherwise noted on the signature page hereto. Also set forth on the
signature page hereto is (i) the number of shares of Basic Common Stock issuable pursuant to Basic
Stock Options held by Affiliate and (ii) the number of shares of Basic Restricted Stock (which have
not vested) held by Affiliate.
(c) No Conflicts. (i) No filing with any governmental authority, and no authorization,
consent or approval of any other person is necessary for the execution of this Agreement by
Affiliate and the consummation by Affiliate of the transactions contemplated hereby (it being
understood that nothing herein shall prevent Affiliate’s compliance with Section 13(d) of the
Exchange Act) and (ii) none of the execution and delivery of this Agreement by Affiliate, the
consummation by Affiliate of the transactions contemplated hereby or compliance by Affiliate with
any of the provisions hereof shall (A) result in, or give rise to, a violation or breach of or a
default under any of the terms of any material contract, understanding, agreement or other
instrument or obligation to which Affiliate is a party or by which Affiliate or any of Affiliate’s
Subject Shares or assets may be bound, or (B) violate any applicable order, writ, injunction,
decree, judgment, statute, rule or regulation which could reasonably be expected to adversely
affect Affiliate’s ability to perform Affiliate’s obligations under this Agreement.
(d) Reliance by Grey Wolf. Affiliate understands and acknowledges that Grey Wolf has entered
into the Merger Agreement in reliance upon the covenants contained therein requiring the execution
and delivery of this Agreement by Affiliate.
5. Representations and Warranties of Grey Wolf. Grey Wolf hereby represents and warrants to
Affiliate as follows:
(a) Due Organization, etc. Grey Wolf is a corporation duly incorporated and validly existing
under the laws of the jurisdiction of its incorporation. Grey Wolf has all necessary corporate
power and authority to execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby by Grey Wolf has been duly authorized by all necessary action on
the part of Grey Wolf and, assuming its due authorization, execution and delivery by Affiliate,
constitutes a valid and binding obligation of Grey Wolf, enforceable against Grey Wolf in
accordance with its terms, except to the extent that its enforceability may be subject to
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applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the
enforcement of creditors’ rights generally and by general equitable principles.
(b) Conflicts. (i) No filing with any governmental authority, and no authorization, consent
or approval of any other person is necessary for the execution of this Agreement by Grey Wolf and
the consummation by Grey Wolf of the transactions contemplated hereby and (ii) none of the
execution and delivery of this Agreement by Grey Wolf, the consummation by Grey Wolf of the
transactions contemplated hereby shall (A) conflict with or result in any breach of the
organizational documents of Grey Wolf, (B) result in a violation or breach of or a default under
any of the terms of any material contract, understanding, agreement or other instrument or
obligation to which Grey Wolf is a party or by which Grey Wolf or any of its assets may be bound,
or (C) violate any applicable order, writ, injunction, decree, judgment, statute, rule or
regulation which could reasonably be expected to adversely affect Grey Wolf’s ability to perform
its obligations under this Agreement.
(c) Reliance by Affiliate. Grey Wolf understands and acknowledges that (i) Affiliate is
entering into this Agreement in reliance upon the execution and delivery of the Merger Agreement by
Grey Wolf and (ii) that the closing of the transactions contemplated by the Merger Agreement would
be of material benefit to Affiliate.
6. Miscellaneous.
(a) Affiliate Capacity. If Affiliate is or becomes during the term hereof a director or
officer of Basic, Affiliate does not make any agreement or understanding herein in Affiliate’s
capacity as such director or officer. Affiliate executes this Agreement solely in Affiliate’s
capacity as the record holder or beneficial owner of Affiliate’s Subject Shares and nothing herein
shall limit or affect any actions taken by Affiliate in Affiliate’s capacity as an officer or
director of Basic. Without limiting the foregoing, nothing in this Agreement shall limit or affect
the ability of a director or officer of Basic to take any action as may be advisable or necessary
in the discharge of his or her fiduciary duties as such director or officer, and without regard to
whether he or she is, without limitation, (i) a trustee or co-trustee of one or more Affiliates,
(ii) an officer, consultant or other representative of a trustee or co-trustee of one or more
Affiliates, or (iii) a beneficiary of one or more Affiliates.
(b) Publication. Affiliate hereby permits Basic and Grey Wolf to publish and disclose in the
Proxy Statement/Prospectus (including all documents and schedules filed with the SEC) and in other
filings with the SEC Affiliate’s identity and ownership of shares of Basic Common Stock and the
nature of Affiliate’s commitments, arrangements, and understandings pursuant to this Agreement.
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(c) Further Actions. Each of the parties hereto agrees that it will use its best efforts to
do all things necessary to effectuate this Agreement.
(d) Entire Agreement. This Agreement contains the entire understanding of the parties hereto
with respect to the subject matter contained herein and supersedes all prior agreements and
understandings, oral and written, with respect thereto.
(e) Binding Effect; Benefit; Assignment. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their Permitted Transferees, heirs, estates and successors.
Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned
by any of the parties hereto, except by will or by the laws of descent and distribution, without
the prior written consent of each of the other parties. Nothing in this Agreement, expressed or
implied, is intended to confer on any person, other than the parties hereto, any rights or
remedies.
(f) Amendments, Waivers, etc. This Agreement may not be amended, changed, supplemented,
waived or otherwise modified or terminated, except upon the execution and delivery of a written
agreement executed by all of the parties hereto.
(g) Specific Enforcement. The parties agree that irreparable damage would occur in the event
that any of the provisions of this Agreement were not performed in accordance with their specific
terms or were otherwise breached. Accordingly, the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically the terms and
provisions of this Agreement, this being in addition to any other remedy to which they are entitled
at law or in equity.
(h) Remedies Cumulative. All rights, powers and remedies provided under this Agreement or
otherwise available in respect hereof at law or in equity shall be cumulative and not alternative,
and the exercise of any thereof by any party shall not preclude the simultaneous or later exercise
of any other such right, power or remedy by such party.
(i) No Waiver. The failure of any party hereto to exercise any right, power or remedy
provided under this Agreement or otherwise available in respect hereof at law or in equity, or to
insist upon compliance by any other party hereto with its obligations hereunder, and any custom or
practice of the parties at variance with the terms hereof shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to demand such
compliance.
(j) Governing Law; Waiver of Jury Trial. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE AS THEY RELATE TO THIS
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AGREEMENT. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
(k) Headings. The descriptive headings of this Agreement are inserted for convenience only,
do not constitute a part of this Agreement and shall not affect in any way the meaning or
interpretation of this Agreement.
(l) Counterparts; Facsimiles. This Agreement may be executed in several counterparts, each of
which shall be deemed to be an original, and all of which together shall be deemed to be one and
the same instrument. A signature transmitted by facsimile or by electronic mail in “portable
document format” shall be treated for all purposes by the parties hereto as an original and shall
be binding upon the party transmitting such signature without limitation.
(m) Termination. This Agreement shall terminate, and neither Grey Wolf nor Affiliate shall
have any rights or obligations hereunder, and this Agreement shall become null and void and have no
effect upon the earliest to occur of (i) the mutual consent of Grey Wolf and Affiliate, (ii) the
Effective Time, (iii) a Basic Acquisition Proposal Recommendation or (iv) the effective termination
of the Merger Agreement pursuant to its terms; provided, further, that termination of this
Agreement shall not prevent any party hereunder from seeking any remedies (at law or in equity)
against any other party hereto for such party’s breach of any of the terms of this Agreement.
Notwithstanding the foregoing, Sections 6(d), 6(e), 6(h) and 6(j) shall survive the termination of
this Agreement.
[Signatures on following pages]
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IN WITNESS WHEREOF, this Agreement is executed as of the date first stated above.
| GREY WOLF, INC. a Texas corporation |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxx | |||
| Title: | President & CEO | |||
| AFFILIATE | ||||
| DLJ Merchant Banking Partners III, L.P. By: DLJ Merchant Banking III, Inc., |
||||
| Its Managing General Partner | ||||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Vice President | |||
| Number of shares of Basic Common Stock owned: 12,650,117 |
||||
| Number of shares of Basic Common Stock issuable upon exercise of Basic Stock Options held: N/A |
||||
| Number of shares of Basic Restricted Stock (which have not vested) held: N/A |
||||
| AFFILIATE | ||||
| DLJ Merchant Banking
III, Inc., as Advisory General Partner on behalf of DLJ Offshore Partners III, C.V. | ||||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Vice President | |||
| Number of shares of
Basic Common Stock owned: 884,531 |
||||
| Number of shares of Basic Common Stock issuable upon exercise of Basic Stock Options held: N/A |
||||
| Number of shares of Basic Restricted Stock (which have not vested) held: N/A |
||||
| AFFILIATE | ||||
| DLJ Merchant Banking
III, Inc., as
Advisory General Partner on behalf of DLJ Offshore Partners III-1, C.V. and as attorney-in-fact for DLJ Merchant Banking III, L.P., as Associate General Partner of DLJ Offshore Partners III-1, C.V. |
||||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Vice President | |||
| Number of shares of
Basic Common Stock owned: 228,284 |
||||
| Number of shares of Basic Common Stock issuable upon exercise of Basic Stock Options held: N/A |
||||
| Number of shares of Basic Restricted Stock (which have not vested) held: N/A |
||||
| AFFILIATE | ||||
| DLJ Merchant Banking
III, Inc., as
Advisory General Partner on behalf of DLJ Offshore Partners III-2, C.V. and as attorney-in-fact for DLJ Merchant Banking III, L.P., as Associate General Partner of DLJ Offshore Partners III-2, C.V. |
||||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Vice President | |||
| Number of shares of
Basic Common Stock owned: 162,622 |
||||
| Number of shares of Basic Common Stock issuable upon exercise of Basic Stock Options held: N/A |
||||
| Number of shares of Basic Restricted Stock (which have not vested) held: N/A |
||||
| AFFILIATE | ||||
| DLJ Merchant Banking
III, Inc., as
General Partner DLJ Merchant Banking III, L.P. and as attorney-in-fact for DLJ Merchant Banking III, L.P. as Managing Limited Partner for and on behalf of DLJ MB PartnersIII GmbH & Co. KG |
||||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Vice President | |||
| DLJ MB GmbH, as
General Partner for and on behalf of DLJ MB PartnersIII GmbH & Co. KG |
||||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Director | |||
| Number of shares of
Basic Common Stock owned: 107,898 |
||||
| Number of shares of Basic Common Stock issuable upon exercise of Basic Stock Options held: N/A |
||||
| Number of shares of Basic Restricted Stock (which have not vested) held: N/A |
||||
| AFFILIATE | ||||
| Millennium Partners II, L.P. By: DLJ Merchant Banking III, Inc., |
||||
| Its Managing General Partner | ||||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Vice President | |||
| Number of shares of
Basic Common Stock owned: 21,516 |
||||
| Number of shares of Basic Common Stock issuable upon exercise of Basic Stock Options held: N/A |
||||
| Number of shares of Basic Restricted Stock (which have not vested) held: N/A |
||||
| AFFILIATE | ||||
| DLJ ESC II, L.P. By: DLJ LBO Plans Management Corporation, |
||||
| Its General Partner | ||||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Vice President | |||
| Number of shares of Basic Common Stock owned: 1,493,185 |
||||
| Number of shares of Basic Common Stock issuable upon exercise of Basic Stock Options held: N/A |
||||
| Number of shares of Basic Restricted Stock (which have not vested) held: N/A |
||||
| AFFILIATE | ||||
| DLJMB Funding III, Inc. | ||||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Vice President | |||
| Number of shares of Basic Common Stock owned: 132,220 |
||||
| Number of shares of Basic Common Stock issuable upon exercise of Basic Stock Options held: N/A |
||||
| Number of shares of Basic Restricted Stock (which have not vested) held: N/A |
||||
| AFFILIATE | ||||
| MBP III Plan Investors, L.P. By: DLJ LBO Plans Management Corporation II, |
||||
| Its General Partner | ||||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Vice President | |||
| Number of shares of
Basic Common Stock owned: 2,379,051 |
||||
| Number of shares of Basic Common Stock issuable upon exercise of Basic Stock Options held: N/A |
||||
| Number of shares of Basic Restricted Stock (which have not vested) held: N/A |
||||
