Exhibit 10.2
VOTING AGREEMENT
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 sol
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