The Company and Nuverra have agreed, subject to certain exceptions with respect to
unsolicited proposals, not to solicit competing acquisition proposals or to enter into discussions concerning, or provide confidential information in connection with, any unsolicited alternative acquisition proposals.
The completion of the Initial Merger is subject to the satisfaction or waiver of customary closing conditions, including: (i) adoption of
the Merger Agreement by holders of a majority of the outstanding Nuverra Common Stock (ii) absence of any court order or regulatory injunction prohibiting completion of the Merger, (iii) effectiveness of the Company’s registration
statement on Form S-4 (the “Registration Statement”) to register the Company Common Stock to be issued in the Merger, (iv) subject to specified materiality standards, the accuracy of
the representations and warranties of the other party, (v) the authorization for listing of Company Common Stock to be issued in the Initial Merger on the NYSE, (vi) lender consent under the Parent ABL Credit Agreement (as defined in the
Merger Agreement), (vii) the receipt of payoff documentation with respect to the Nuverra’s bank facility and consents to the consummation of the Mergers under Nuverra’s finance leases, (viii) compliance by each other party in all
material respects with their respective covenants and (ix) the absence of a Company Material Adverse Effect or a Parent Material Adverse Effect (each as defined in the Merger Agreement), as applicable.
The Company, Merger Sub, Holdco, and Nuverra 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 Nuverra’s business between the date of the signing of the Merger Agreement and the closing date of the Mergers,
(ii) Nuverra’s covenant not to withdraw, qualify or modify the support of its board of directors for the Merger Agreement and the Transactions, as applicable and (iii) the efforts of the parties to cause the Mergers to be completed,
including with respect to governmental approvals and third party approvals.
In addition, the Merger Agreement contains covenants that
require Nuverra to use reasonable best efforts to cause certain principal stockholders of Nuverra (the “Nuverra Designated Stockholders”) to duly execute and deliver a written consent approving the Merger Agreement within twenty-four
(24) hours of the Registration Statement becoming effective and receiving a copy of the consent solicitation statement/prospectus included therein. In the event the Nuverra Designated Stockholders fail to deliver such written consent, the
Company shall have the option to terminate the Merger Agreement or elect to have Nuverra use its reasonable best efforts to call a special meeting of the stockholders for the purpose of obtaining stockholder approval of the Merger Agreement.
The Merger Agreement contains certain termination rights for the Company and Nuverra. The Merger Agreement further provides that, upon
termination of the Merger Agreement under certain circumstances, Nuverra may be required to (i) pay the Company a termination fee equal to $2,500,000 or (ii) reimburse the Company up to $1,250,000 in respect of the expenses of the Company
incurred in connection with the Merger Agreement and the Transactions.
The Merger Agreement is attached hereto as Exhibit 2.1 and is
incorporated by reference. The foregoing summary has been included to provide investors and security holders with information regarding the terms of the Merger Agreement and is qualified in its entirety by the terms and conditions of the Merger
Agreement. It is not intended to provide any other factual information about the Company, Nuverra 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, warranties and covenants or any descriptions
thereof as characterizations of the actual state of facts or condition of the Company, Nuverra or any of their respective subsidiaries or affiliates. Moreover, information concerning the subject matter of the representations, warranties and
covenants may change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in the Company’s or Nuverra’s public disclosures.
Support Agreements
Contemporaneously with the execution of the Merger Agreement, the Company, Merger Sub, Holdco, and Nuverra entered into support agreements (the
“Support Agreements”) with each of the Nuverra Designated
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