Exhibit 1
Execution Version
PURCHASE, SALE AND ASSIGNMENT AGREEMENT
This Purchase, Sale andAssignment Agreement (this“Agreement”) is entered into as of March 3, 2017, by andamong FT SOF VII Holdings, LLC (the “Buyer”),ACM Emerging Markets Master Fund I, L.P. (“Master Fund Seller”), ACM Multi-Strategy Delaware Holding LLC (the “Multi-Strategy Seller” and, together with the Master Fund Seller, the “Sellers”), Eco-Stim Energy Solutions, Inc.(the “Issuer”) and eachsubsidiary of the Issuerthat is a partyhereto (together with theIssuer, the “Companies” and each, a“Company”). Each of the Sellers, the Buyer and each Company is a“Party” to thisAgreement and collectively are the “Parties” hereto.
W I T N E S S E T H
WHEREAS, (i) Master Fund Seller desires tosell to Buyer, and Buyer desires to purchase from Master Fund Seller, (x) 2,030,436 shares of common stock of the Issuer, par value $0.001 per share (the “Issuer Shares”), and (y) $22,000,000 aggregate principalamount of the Issuer’s 14% convertible secured notes due 2018 issued andoutstanding pursuant to that certain Convertible Note FacilityAgreement, dated as of May 28, 2014 (asamended by that certain FirstAmendment to Convertible Note FacilityAgreement, dated as of May 28, 2015, the “Convertible Note FacilityAgreement”), by and betweenthe Issuer and the Master Fund Seller, as note purchaser (the “Notes”) and (ii)Multi-Strategy Seller desires tosell toBuyer, andBuyer desires topurchase from Multi-Strategy Seller, 1,000 Class CShares of Eco-Stim Argentina (the“Eco-Stim Argentina Shares” and,together with the Issuer Shares, the “Shares”), in each case of clauses (i) and (ii), subject to certainterms and conditions, including the execution of thisAgreement;
WHEREAS, in connection with the Purchase and Sale, each Seller desires to assign and transfer to Buyer, and Buyerdesires toreceive and accept from each Seller, the Transferred Rights (as defined below), subject to, and in accordance with, theterms and conditions set forth in thisAgreement (the“Assignment”); and
WHEREAS, Sellers and Buyer have requested theCompanies toacknowledge and confirm the Purchase and Sale, the Assignment and all other transactionscontemplated by thisAgreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are herebyacknowledged, the Partiesagree asfollows:
Section 1. Defined Terms; Rules ofConstruction.
(a) Defined Terms. As used in thisAgreement, thefollowing terms shallhave the definitions set forth below:
“Benefit PlanInvestor” means (a) anyemployee benefit plan (as defined in section 3(3) of ERISA), that is subject to Title 1 of ERISA, (b) any plan to which Section 4975 of the Internal Revenue Code
applies,including, withoutlimitation, individualretirement accounts and Keogh plans, and (c)any entity, the underlying assets of which include plan assets of a plan described in (a) or (b) above by reason of a plan’sinvestment in the entity, including withoutlimitation forthis purpose, the general account of an insurancecompany, any of theunderlying assets of which constitute “plan assets” under Section 401(c) of ERISA, or awholly owned subsidiary thereof.
“Business Day”means any day other than a Saturday, Sunday or day on which banks in New York City are authorized orrequired by anyRequirement of Law to close.
“Closing Date”means the firstBusiness Day on which each of the conditions set forth in Section 2(a) aresatisfied or waived by the Buyerand each ofthe conditions set forth in Section2(b) are satisfied or waivedby theSellers.
“Collateral” has the meaning assigned to such term in the Convertible Note FacilityAgreement and includes all assetsor property of any Company that secures or purportedly secures, or isotherwise collateral for orintended to be collateral for, the Obligations.
“Eco-Stim Argentina” means Eco-Stim Energy Solutions Argentina S.A., asociedad anonima organized under the laws of the Republic of Argentina.
“Eco-Stim Texas” means EcoStim, Inc., a Texas corporation.
“Equity Interest”means, with respect to any Person, any and all shares of capital stock, partnership interests,membership interests in alimited liabilitycompany, beneficialinterests in a trust or other equity, ownership or profitsinterests in any Person (however designated, whether votingor nonvoting), in each case, including the foreign equivalentthereof, and any option, warrant or other right entitling the holder thereof to purchase or otherwise acquire any such equity, ownership or profits interest, including debt securitiesconvertible or exchangeable into any such equity, ownership orprofits interests, ineach case,including the foreign equivalent thereof.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
“Existing Liens”means thesecurity interests on theCollateral securing the Obligations.
“Governmental Authority”means any federal, state,local orforeign courtor governmentalagency, authority,instrumentalityorregulatoryorlegislativebody.
“New RegistrationRights Agreement” means thatcertain Registration RightsAgreement, dated as of March 3 2017, by andamong the Issuer, the Buyer and the other stockholdersnamed therein.
“NoteDocuments” means each of thedocuments, agreements andinstruments set forth onExhibit A.
“Notes Purchase Price”means $24,354,301.37, of which (x) $22,000,000 represents the aggregate principalamount ofoutstanding Notes as ofthe Closing Date and (y) $2,354,301.37 representsaccrued and unpaid interest on the Notesthrough, and including,the Closing Date.
“Obligations” has themeaning assigned to such term in the Convertible Note FacilityAgreement.
“Original Registration RightsAgreement” means that certain Registration RightsAgreement, dated as of May 28, 2014, by and among the Issuer, theMaster Fund Seller and the other stockholdersnamedtherein.
“Original StockholderRights Agreement” means that certain Stockholder RightsAgreement, dated as of May 28, 2014, by and among the Issuer, theMaster Fund Seller and the stockholdersnamedtherein.
“Person” means any natural person,corporation, business trust, joint venture, association,company, limited liabilitycompany, partnership, Governmental Authority or other entity.
“PossessoryCollateral” means anyCollateral in thepossession of theSellers (or its agents or bailees) or under the control (asdefined in the Uniform CommercialCode) of the Sellers, to the extent thatpossession or controlthereof perfects a Lien thereon under the UniformCommercial Code of anyjurisdiction.
“Requirement of Law”means, withrespect to any Person, thecommon law and all federal, state, localand foreign laws, rules and regulations, orders,judgments, decrees and other legalrequirements ordeterminations of anyGovernmental Authority or arbitrator, applicable to or binding upon such Person or any of its property or which such Person or any of its property is subject.
“ShareDocuments” means each of thedocuments, agreements andinstruments set forth onExhibit B.
“Shares Purchase Price”means $2,038,045.25.
“Stockholder RightsAgreement” means that certain Stockholder Rights Agreement, dated as of May 28, 2014, by andamong the Issuer and the stockholdersnamed therein.
“Transferred Note Rights”means all of each Seller’s right, title and interest in, to orarising under and inconnection with theNotes, including (i) all of eachSeller’s right, titleand interest in, to or arising under, each of the NoteDocuments and (ii) allclaims, suits, causes of action, and othersrights ofeach Seller, whether known or unknown, that in any way arebased upon, arise out of, or are related to the Notes and the NoteDocuments.
“Transferred Rights” means theTransferred Note Rights and the Transferred Share Rights.
“Transferred Share Rights”means all of each Seller’s right, title and interest in, to or arising under and inconnection with theShares, including (i) all of each Seller’s right, title and interest in, to or arising under, each ofthe Share Documents and (ii) allclaims, suits, causes of action,and othersrights of each Seller, whether known or unknown, that in any way are based upon, arise out of, or are related to the Shares and the ShareDocuments. For the avoidance of doubt, theTransferred Share Rights include the Issuer Shares and the Eco-Stim Argentina Shares and allrights of Master Fund Seller as beneficial owner of the Issuer Sharesand of Multi- Strategy Fund Seller as beneficial owner of the Eco-Stim Argentina Shares.
“UniformCommercial Code” or “UCC” means, unless otherwise specified, theUniform Commercial Code asfrom time totimein effect in the State of New York.
“Viking Rock AS”means Viking RockAS, an aksjeselskap incorporated underthe laws of the Kingdom of Norway.
“Viking Rock Holdings”means Viking Rock Holding AS, an aksjeselskap incorporated under the laws of the Kingdom of Norway.
(b) Rules ofConstruction. Unless otherwisespecified, references inthis Agreement to any Section, clause or subclause refer to suchArticle, Section, clause or subclause ascontained in thisAgreement and references to any Exhibit or Schedulerefer to such Exhibit or Schedule attached to thisAgreement. Thewords “herein,” “hereof” and “hereunder” and other words ofsimilar import in thisAgreement refer to thisAgreement as a whole, and not to any particular Section, clause orsubclause contained in thisAgreement. Wherever fromthe context it appears appropriate, each term stated in either the singular or plural shall include the singular and the plural, and pronouns stated in themasculine, feminine or neuter gender shall include themasculine, feminine and neuter genders. The words “including,” “includes” and “include” shall bedeemed to be followed by the words “withoutlimitation”. The word “will”shall be construed to have thesame meaning and effect as theword “shall”; and the words “asset” and “property” shall be construed as having thesame meaning and effect and torefer to any and all tangible and intangible assets and properties, including cash, securities,accounts and contract rights. The words“security interest” and“lien” shall be construed as having thesame meaning and effectand to refer to any charge, pledge and/or foreign equivalent of any of the foregoing. The word “cash”shallbeconstrued tomeanUnited StatesDollars.
Section 2. Purchase, Sale and Assignment.
(a) Conditions toPerformance by Buyer.Upon the satisfaction of the following conditions (or thewaiver thereof by Buyer in its sole and absolute discretion), Buyer shall pay to theSellers on theClosing Date (x) the Share PurchasePrice aspayment infull for the Transferred Share Rights and (y)the NotesPurchase Price aspayment in fullfor the Transferred NoteRights, in each case of clauses (x) and(y), in cash inimmediately available funds pursuant to the Sellers’ wiretransfer instructions set forthonSchedule 2(a) hereto:
(i) each of the Parties shall have executed and delivered a counterpart to this Agreement;
(ii) Sellers shall have delivered to Buyer, and Buyer shall have accepted fromSellers, allcertificates and instrumentslisted onExhibit C;
(iii) each of Ahmad Al-Sati, Lap Wai Chan and Leonel Narea shall have resigned from the Issuer’s board of directors and all sub-committees thereof and David Proman, Andrew Teno and Andrew Colvin shall have been nominated as their respective replacements;
(iv) Master Fund Seller shall have delivered to the transfer agent for theCompany’s common stock (the“Transfer Agent”) all physicalcertificates representing the Issuer Shares, and the Buyer shall havereceived evidence satisfactory to itthat the Issuer Shares shallhave beentransferred into thename of Buyer’s designatednominee on the books of The Depository TrustCompany (the “DTC Transfer”);
(v) all consents, authorizations and approvals of, and filingsand registrations with, and all other actions in respect of, anyGovernmental Authority or other Person(including NASDAQ), or any contract oragreement applicable to anyCompany or the Sellers or the Buyer, that are required inconnection with thetransactions contemplated by thisAgreement (including the DTCTransfer) shallhave beenobtained by eachCompanyand the Buyer and Sellers, asapplicable,and shall be in full force and effect;
(vi) all representations and warranties of Sellerscontained in thisAgreement shallbe true and correct in allmaterial respects;
(vii) since September 30, 2016, there shall not have occurred any uninsured loss of, or casualty with respect to, any equipment that is material to the operations of the Companies, taken as a whole;
(viii) Buyer shall have received (i) a copy of MasterFund Seller’sorganizational documents, certified as of a recent date by the appropriategovernmental official, (ii) signature andincumbency certificates of the officers of Master Fund Seller executingthis Agreement and each otherTransaction Document, (iii) resolutionsof the board of directors orsimilar governingbody of Master Fund Seller approving and authorizing theexecution, delivery andperformance ofthis Agreement andthe other Transaction Documents to which it is aparty by its secretary or person serving in asimilar capacity asbeing in full forceand effect as of theClosing Date without modification oramendment and (iv) a goodstanding certificate from the applicableGovernmental Authority of Master Fund Seller’s jurisdiction of incorporation, organization orformation;
(ix) the Companies shall be in compliance with all material Requirements of Law, which shall include all reporting requirements of the U.S. Securities and Exchange Commission and the Nasdaq listing requirements; and
(x) Buyer shall havereceived anexecuted consent and waiver from each of the parties to the Stockholder RightsAgreement and the Registration Rights Agreement (in each case, other
than the Master Fund Seller) confirming that such party waives any and all defaults, violations and/or other non-compliance by the Master Fund Seller with the Original Stockholder Rights Agreement, including Section 4.04 thereof, and the Original Registration Rights Agreement, including Section 10 thereof, as a result of the consummation of the Purchase and Sale and the Assignment and the entry into the New Registration Rights Agreement (the “Consent and Waiver”), which waivers shall be in form and substance satisfactory to the Buyer and shall be in full force and effect.
(b) Conditions to Performance by Sellers. Upon the satisfaction of the following conditions (or waiver thereof by the Sellers in their sole and absolute discretion), Sellers shall, and hereby does, sell, transfer, assign and convey the Transferred Rights to Buyer on the Closing Date:
(i) each of the Parties shall have executed anddelivered a counterpart to thisAgreement;
(ii) the Sellers shallhave received theNotes Purchase Priceand the SharesPurchase Price;
(iii) all consents, authorizations and approvals of, and filingsand registrations with, and all other actions in respect of, anyGovernmental Authority or other Person (including NASDAQ), or any contract oragreement applicable to eachCompany or the Sellers or the Buyer, that are required inconnection with thetransactions contemplated by thisAgreement shall have been obtained by such Company and the Sellers, asapplicable, andshallbe infull forceandeffect;
(iv) all representations and warranties of the Buyer contained in this Agreement shall be true and correct in all material respects;
(v) Sellers shall have received (i) a copy of Buyer’s organizationaldocuments, certified as of a recent date by the appropriategovernmental official, (ii)signature and incumbency certificates ofthe officers of Buyerexecuting thisAgreement and eachother Transaction Document, (iii)resolutions of the board of directors orsimilar governing body of Buyer approving and authorizing the execution, delivery and performance of thisAgreement and the otherTransaction Documents to which it is a party by its secretary or personserving in asimilar capacity asbeing infull force and effect as of the Closing Date withoutmodification oramendment and (iv) a good standingcertificate from theapplicable Governmental Authority of Buyer’sjurisdiction of incorporation, organization orformation; and
(vi) the general counsel of the Issuer shall have delivered an opinion to the Transfer Agent in form and substance reasonably satisfactory to Master Fund Seller confirming that the Issuer Shares can be transferred without restriction under applicable Requirements of Law.
(c) Closing. The closing of the Purchase and Sale and theAssignment, including the delivery of allrelated documentation required inconnection therewith (including the Transaction Documents)
(the “Closing”), shall occur at the offices of Stroock & Stroock & Lavan LLP at 10:00 A.M. New York City time on the Closing Date (or such other time that is agreed among the Parties).
(d) Effect of Closing Date. Each of theSellers and the Buyer and eachCompanyhereby acknowledges,confirms andconsentsto the following on,as of and after the Closing Date:
(i) theSellers hereby irrevocably assigns and delegates to Buyer, and Buyer hereby accepts, all of therights, powers(including powers of attorney), benefits, privileges, discretions, and duties andinterest in, to and under the NoteDocuments and the ShareDocuments, including (A) as“Investor”, “Stockholder”, “Note Purchaser”, “NoteHolder”, “Secured Party”, “Pledgee” and/or anyother beneficial role orbeneficial title that theSellers hold ormaintain thereunder and (B) theExisting Liens and all other rights, discretions, privileges and interests granted to, or in favor of, the Sellers under the NoteDocuments;
(ii) the each Seller hereby authorizes theCompanies and Buyer to, andthe Companies authorizeBuyer to,prepare, enter into, execute, deliver, record and/or file any and allnotices, certificates, instruments, financing statements and/or otherdocuments oragreements and allsuch filings inrespect of any collateral, andassignments, amendments or supplements to any financingstatements, mortgages, deeds of trust, securityagreements, pledgeagreements, intellectualproperty security agreements, certificates of title or ownership, stock powers, account controlagreements, intercreditoragreements or otherdocuments and, in eachcase, including the foreign equivalent thereof), asBuyer deems necessaryor desirable to effector evidence (ofpublic record or otherwise) the transactionscontemplated by thisAgreement, and tomaintain the validity, perfection, priority, of, or assign to Buyer, theExisting Liens, and theCompanies and each Seller hereby agree to execute anddeliver anydocumentation reasonably requested by the Buyer tomaintain thevalidity, perfection or priority of, or assign to the Buyer, the ExistingLiens, or tomaintain the rights, powers andprivileges afforded to the eachSeller;
(iii) on andafter theClosing Date, tothe extent the Existing Liens havenot beenassigned to the Buyer, (A) each Seller shall bedeemed to hold such Existing Liens ascollateral representative and sub-agent of the Buyer for the benefit, and on behalf, of the Buyer for the purposes ofmaintaining the priorityand perfection of the Existing Liens anduntil such time as theExisting Liens have been assigned tothe Buyer, (B) eachSeller shall follow allinstructions given to it by theBuyer withrespect toexercising remedies withrespect to theCollateral and/or the Existing Liens(including anyinstruction to creditbid) and withrespect toprotecting or maintaining theCollateral and/or the ExistingLiens untilsuch time asthe ExistingLiens havebeen assigned to the Buyer and (C) each Seller shall hold in trustfor the benefit of, andpromptly turn over to, the Buyer any proceeds of the Collateraland/or in respect of the Existing Liensthat is received by each Seller;
(iv) each Seller shall (A) promptly make, or cause to be made, all reasonably requested filings and take all other actions reasonably requested (including the entry into powers of attorney) that are necessary or advisable to maintain the validity, perfection and priority of the Existing Liens in connection with the assignment thereof to the Buyer, (B) execute all documents, agreements or instruments as may be reasonably requested by the Buyer to transfer the rights and privileges of each Seller under the Share Documents and/or the Note Documents to the Buyer and (C) take all other actions reasonably requested by the Buyer to facilitate the transfer of information and the Existing Liens to the Buyer in connection with the Share Documents and/or the Note Documents, including the delivery of any Possessory Collateral not listed onExhibit C, if any;
(v) each Company hereby (A) agrees that the Existing Liens shall be continuing and in effect as of the Closing Date and are hereby ratified and reaffirmed by such Company, (B) agrees that the Existing Liens are hereby assigned to the Buyer and (C) confirms that all Collateral encumbered by such Existing Liens will continue to secure the payment and performance of the Obligations in accordance with the Note Documents;
(vi) if at any time after the date hereof, each Seller receives any payment or other distribution of cash (including dividends), securities, instruments or other property or proceeds on account of the Transferred Share Rights (each, a “Distribution”), whether or not the Distribution is assignable, each Seller shall (i) accept and hold the Distribution (to the extent received by each Seller) on behalf of and for the sole benefit of Buyer, (ii) have no equitable or beneficial interest in the Distribution and (iii) deliver the Distribution (free of any withholding, setoff, recoupment, or deduction of any kind except as required by law) promptly (but in the case of a cash Distribution, in no event later than three (3) business days after the date on which such Seller receives the Distribution) to Buyer in the same form received and, when necessary or appropriate, with such Seller’s endorsement (without recourse, representation, or warranty), except to the extent prohibited under any applicable law, rule, order or other document governing the transfer of any such Distribution, or use commercially reasonable efforts (at Buyer’s sole expense) to assist Buyer to cause the Distribution to be registered in Buyer’s name, or such name as Buyer may direct in writing, and deliver securities or any non-cash Distribution to Buyer or to such entity as Buyer may direct as soon as practicable; and
(vii) each Party herebywaives any noticerequirement underthe ShareDocuments or NoteDocuments in respect of transactions contemplated by thisAgreement.
Section 3. Representations and Warranties ofSellers.
Each Seller hereby represents andwarrants toBuyer, as of the date hereof and on the Closing Date, that:
(a) Due Organization and Authority.Such Seller is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, having full right, power and authority toexecute and deliver this Agreement and all other documents necessary or desirable to consummate thetransactions contemplated hereby (the “TransactionDocuments”), asapplicable, to perform its obligations hereunder and to consummate the transactionscontemplated hereby.
(b) Authorization andValidity ofAgreement. SuchSeller has taken allaction necessary in order toauthorize, execute and deliver thisAgreement and theother Transaction Documents and to consummate the transactionscontemplated hereby. ThisAgreement and the other TransactionDocuments have beenduly executed and delivered by such Seller and are valid andbinding obligations of suchSeller, enforceable against such Seller in accordance withtheir respectiveterms (subject to applicable bankruptcy, reorganization, insolvency,moratorium or similar laws affecting creditors’ rightsgenerally andsubject, as toenforceability, to equitableprinciples of generalapplication).
(c) No Violations, No Conflicts. SuchSeller’s authorization, execution, delivery andperformance of thisAgreement and the otherTransaction Documents does notand will not (i) violateany law, rule,regulation orcourt order to which suchSeller issubject or (ii)conflict with orresult in a breach of such Seller’sorganizational documents, or breach or result in a default under anymaterial agreement to which such Seller is aparty or by which such Seller or such Seller’s assets are bound. All consents or approvals required to beobtained, and all noticesrequiredto be delivered, by such Seller from or to any Governmental Authority or other Person in connection with such Seller’s authorization, execution, delivery and performance of thisAgreement and the otherTransaction Documents are set forth onSchedule 3(c), which consents, approvals and notices (x) have already been obtained or given by such Seller andremain in full force and effect as of the date hereof and as of the Closing Date or (y) are requiredto be obtained, or delivered to, the Issuer.
(d) AccreditedInvestor; Non-Affiliate. Such Seller is, and has been since itacquired theShares and the Notes,an “accreditedinvestor” as such term is defined in Rule 501 underthe Securities Act of 1933, as amended, and the rules and regulationspromulgatedthereunder (the“SecuritiesAct”).
(e) Independent Investigation; No Reliance. SuchSeller has, independently and without reliance on Buyer, the Issuer or any of their respectiveaffiliates, made its ownappraisal and decision withrespect to thetransactions described above, the financialcondition, creditworthiness and affairs of the Issuer and each of its affiliates,and the value of the Transferred Rights. Such Seller has had the opportunity to obtain and has obtained all of theinformation that ithas deemed appropriate for the purpose of evaluating itsinvestment in theTransferred Rights, issatisfied with thescope and extent of itsinvestigations and requires noadditional information tomake aninformed decision. Such Seller is asophisticated investor and has such knowledge and experience in financial and businessmatters as to becapable of independently evaluating themerits, risks andsuitability ofentering into thisAgreement and thetransactions contemplated hereby, and is able to bear the risks attendant to the transactionscontemplated hereby. Such Seller is dealing with Buyer on a professionalarm’s length basis andneither Buyer nor any of itsaffiliates is acting asfiduciary or advisor tosuch Seller withrespect tothis Agreement or the transactionscontemplatedhereby.
(f) No Proceedings. There are noproceedings pending against such Seller or, to the best of such Seller’sknowledge, threatened against such Seller before any relevantgovernmental authority that, inthe aggregate, willmaterially and adversely affect (i)the TransferredRights or (ii) any action taken or to betaken by suchSeller under thisAgreement or theother TransactionDocuments.
(g) Legal and Beneficial Ownership. Such Seller has good and valid title to theTransferredRights, asapplicable, and is thesole legal and beneficial owner of the Transferred Rights, as applicable, freeand clear of anymortgage, pledge, security interest, charge, hypothecation, security agreement, securityarrangement, encumbrance, lien or other adverse claim against title of any kind, and such Seller shall transfer to Buyer such full andunencumbered ownership ofthe Transferred Rights it owns. Such Seller has notmadeany priorassignment, transfer or participation of theTransferredRights or of any interesttherein and hasnot entered intoany agreement (other than thisAgreement)orarrangement to do thesame. Such Seller has not taken any action that has, or would reasonably be expected to,terminate, impair orinvalidate any of the Existing Liens. To the knowledge of such Seller,the TransferredShares are fully paid and non-assessable. Such Seller has notgrantedanyproxies withrespect to the Transferred Share Rights thatremainin effect as of such date.
(h) Compliance withSecurities Laws. SuchSeller acquired the Transferred Rights in private transactions for itsown account and without a view towardpublic resale or other distribution thereof in violation of the Securities Act or any otherapplicable securities laws, and has not sold or offered, or solicited any offer to buy, the Transferred Rights in amanner which would violate or require registration under the Securities Act or any otherapplicable securities laws. Neither such Seller nor anyone acting on its behalf has engaged in anygeneral advertising orgeneral solicitation within themeaning of Rule502(c) under theSecurities Act inconnection with theoffer or sale of the Transferred Rights.
(i) No Broker’s Fee. No broker, finder or other entity acting under theauthority of suchSeller or any of itsaffiliates is entitled to anybroker’s commission or otherfee in connection with itssale of the Transferred Rights for which Buyer could beresponsible.
(j) ERISA Representation. Such Seller is not, and is not using assets of, a Benefit Plan Investor or of agovernmental, church or non-U.S. plan that is subject to ERISAor anysimilar Requirement of Law or any entity whose assets aretreated as assets of any such plan to own the Notesand the Shares. The holding and sale of any Notes orany interest therein and of the Shares or anyinterest therein willnot result in anon-exempt prohibitedtransaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code or any similarRequirement of Law. Each term used in this Section 3(j) that is not defined in thisAgreement has themeaning assigned thereto in the Convertible Note FacilityAgreement
(k) NoDistributions. Such Seller hasnot received Distributions, with respect totheShares on or since February 7, 2017.
(l) NoteDocuments.Exhibit A sets forth a true, accurate andcomplete list of alldocuments, agreements andinstruments relating to theTransferred Note Rights to which such Seller is a party, including allamendments, supplements, waivers or othermodificationsthereto.
(m) Share Documents.Exhibit Bsets forth a true, accurate andcomplete list of alldocuments, agreements andinstruments relating to theTransferred Share Rights to which such Seller is a party, including allamendments, supplements, waivers or othermodificationsthereto.
(n) Assignment. The Transferred Notes constitute all indebtedness andliabilities of the Companiesthat is owed to such Seller or anyaffiliate thereof. TheTransferred Sharesconstitute all of the EquityInterests held orbeneficially owned by suchSeller or anyaffiliate thereof in any of the Companies,including Eco-Stim Argentina. After giving effect to theClosing, as of the Closing Date, no Seller or anyaffiliate thereof holds orbeneficially owns EquityInterests of the Companies,including Eco-Stim Argentina.
(o) No Conversion. Sellers have not taken any action to convert anyTransferredNotes intoEquity Interests of the Issuer or any otherCompany.
Section 4. Representations and Warranties of Buyer.
Buyer hereby represents and warrants to Sellers, as of the date hereof and on theClosing Date, that:
(a) Due Organization and Authority. Buyer is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization or incorporation, having fullright, power andauthority to executeand deliver thisAgreement, to perform its obligationshereunder and to consummate the transactionscontemplated hereby.
(b) Authorization and Validity of Agreement. Buyer has taken all action necessary in order to authorize, execute and deliver this Agreement and to consummate the transactions contemplated hereby. This Agreement has been duly executed and delivered by Buyer and is enforceable against it in accordance with its terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application).
(c) No Violations; No Conflicts.Buyer’s authorization, execution, delivery andperformance of thisAgreement does not andwill not (i) violate anylaw, rule, regulation or court order to which Buyer issubject, (ii)conflict with orresult in a breach of Buyer’sorganizational documents, or breach or result in adefault under anymaterial agreement to which Buyer is aparty or by which Buyer’s assets are bound or(iii) require the consent or approval of, orgiving of notice to, any third party or any regulatory authority or governmental authority or agencyhaving jurisdiction over Buyer,other than (A) any suchconsent or approval that has alreadybeen obtained, or notice that has already been given, and remains in full force and effect and (b)consents and approvals required to be given by, and notices required tobe delivered to, the Issuer.
(d) AccreditedInvestor. Buyer is an “accreditedinvestor” as such term is defined in Rule 501 under the Securities Act.
(e) No Registration. Buyer understandsand agrees that (i) the transfer of the Shares and the Noteshave not been registered underthe Securities Act or any state securities law and,assuming the accuracy of each Seller’srepresentations and warranties set forth in Section 3 hereof, arebeing transferred to it intransactions exempt from the registrationrequirements of the Securities Act andapplicable statesecurities laws and(ii) the Shares and the Notes may not be offered orresold except pursuant to an effective registrationstatement under the Securities Act and applicable statesecurities laws or pursuant to an applicableexemption from registration under the Securities Act and applicable state securities laws, or undercircumstances where neither such registration nor such anexemptionis required by applicable law.
(f) Independent Investigation; NoReliance. Buyer has, independently and without reliance on Sellers, the Issueror any of their respectiveaffiliates, made its own appraisal and decision with respect to the transactions described above, the financial condition, creditworthiness and affairs of the Issuer and each of its affiliates, and the value of the Transferred Rights. Buyer has had the opportunity to obtain and has obtained all of theinformation that it hasdeemed appropriate for the purpose of evaluating itsinvestment inthe Transferred Rights, is satisfied with the scope and extent of its investigations and requires no additionalinformation tomake aninformed decision. Buyer is a sophisticated investor and hassuch knowledge and experience in financial and businessmatters as to becapable of independently evaluating themerits, risks andsuitability of enteringinto thisAgreement and the transactions contemplated hereby, and is able to bear the risksattendant to the transactionscontemplated hereby. Buyer is dealing withSellers on aprofessional arm’s length basis and neither Sellers nor any of its affiliates is acting asfiduciary oradvisor to the Buyer withrespect tothis Agreement or the transactionscontemplated hereby.
(g) No Proceedings. There are no proceedingspending against Buyer or, to the best of Buyer’s knowledge,threatened against Buyer before any relevantgovernmental authority that, in the aggregate, willmaterially andadversely affect any action taken or to be taken by Buyer under thisAgreement.
(h) Acquisition. Buyer is acquiring the Shares and Notes without a view to, or for resale in connection with, any distribution of, or with any present intention of distributing or selling in connection with any distribution, all or any portion thereof in violation of the Securities Act.
(i) No Broker’s Fee. No broker, finder or other entity acting under the authority of Buyer orany of itsaffiliates isentitled to any broker’scommission or otherfee in connection with its purchase of the Shares andNotes for which Sellers could beresponsible.
(j) ERISA Representation. Buyer is not, and is not using assets of, a Benefit Plan Investor or of a governmental,church or non-U.S. plan that is subject to ERISA orany similar Requirement of Law or anyentity whoseassets aretreated as assets of any such plan to purchase theNotes and the Shares. The purchase and holding of any Notes or any interest therein and the acquisition of the Shares or any interest therein will not result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code or any similar Requirement of Law. Each term used in this Section 4(j) that is not defined in this Agreement has the meaning assigned thereto in the Convertible Note Facility Agreement.
(k) Big-Boy Provision. The Buyer acknowledges and understands that the Sellersmay possessmaterial non-publicinformation regardingthe Issuer not known to the Buyer thatmay impact the value of the Shares and Notes, including, withoutlimitation, (i)information received by principals andemployees of the Sellers in theircapacities asdirectors, officers, significant stockholders and/or affiliates of the Issuer, (ii)information otherwise received from the Issuer on a confidential basis, and (iii)information received on aprivileged basisfrom the attorneys and financial advisersrepresenting theIssuer and itsboard of directors (collectively, the“Information”), and that the Sellers are not disclosing theInformation to theBuyer. The Buyer understands, based on its experience, the disadvantage to which the Buyer issubject due to thedisparity ofinformation between theSellers and the Buyer. Notwithstanding suchdisparity, the Buyer hasdeemed itappropriate to enterinto thisAgreement and toconsummate the transactions contemplated bythis Agreement. The Buyer agrees that the Sellers shall have noliability to the Buyerwhatsoever due to or in connection with the Sellers’ use or non-disclosure of theInformation or otherwise as a result of the transactionscontemplated bythis Agreement, and the Buyer hereby irrevocably waives any claim that itmight have based on thefailure of theSellers todisclose the Information.
Section 5. Representations and Warranties of the Companies. EachCompany hereby represents and warrants to Buyer, as of the date hereof and on the ClosingDate, that:
(a) Due Organization andAuthority. Each Company is duly organized, validly existingand in good standing under the laws of its jurisdiction of organization, having full right, power and authority to execute and deliver thisAgreement and each of the otherTransaction Documents, asapplicable, to perform its obligations hereunder and to consummate thetransactions contemplated hereby.
(b) Authorization and Validity of Agreement. Each Company has taken all action necessary in order to authorize, execute and deliver this Agreement and the other Transaction Documents and to consummate the transactions contemplated hereby, as applicable. This Agreement and the other Transaction Documents have been duly executed and delivered by each Company and are valid and binding obligations of such Company, enforceable against such Company in accordance with their respective terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application).
(c) No Violations, No Conflicts. Each Company’s authorization, execution, delivery and performance of this Agreement and the other Transaction Documents to which it is a party does not and will not (i) violate any law, rule, regulation or court order to which such Company is subject or (ii) conflict with or result in a breach of such Company’s organizational documents, or breach or result in a default under any
material agreement to which such Company is a party or by which such Company’s assets are bound. All consents or approvals required to be obtained, and all notices required to be delivered, by each Company from or to any Governmental Authority or other Person in connection with such Company’s authorization, execution, delivery and performance of this Agreement and the other Transaction Documents are set forth onSchedule 5(c), which consents, approvals and notices have already been obtained or given by such Company and remain in full force and effect as of the date hereof and as of the Closing Date.
(d) NoProceedings. There are noproceedings pendingagainst anyCompany or, to the best of eachCompany’sknowledge, threatened against suchCompany before any relevantGovernmentalAuthority that, in theaggregate, willmateriallyand adversely affect (i) theTransferred Rights or (ii) any action taken or to betaken by Buyer, Sellers or any Company under this Agreement or the other Transaction Documents.
(e) No Broker’s Fee. No broker, finder or other entity acting under theauthority of anyCompany or any of itsaffiliates is entitled to any broker’scommission or other fee in connection with its sale of theTransferred Rights for which suchCompany could be responsible.
(f) NoteDocuments.Exhibit A sets forth a true, accurate andcomplete list of alldocuments, agreements andinstruments relating to theTransferred Note Rights to which anyCompany is a party, including allamendments, supplements, waivers or othermodificationsthereto.
(g) Share Documents.Exhibit B sets forth a true, accurate and complete list of all documents, agreements and instruments relating to the Transferred Share Rights to which any Company is a party, including all amendments, supplements, waivers or other modifications thereto.
(h) Assignment. Theassignment of (x) theTransferred Note Rights bySellers to Buyer complies with theterms of the NoteDocuments (includingSection 9.1B of the Convertible Note FacilityAgreement) and (y) the Transferred Share Rights bySellers to Buyer complies with theterms of the ShareDocuments (includingSection6.07 of the Stockholder RightsAgreement). The Transferred Notes constitute allindebtedness andliabilities of theCompanies that isowed toSellers or anyaffiliatethereof. The Transferred Rights include all of the EquityInterests held by Sellersor anyaffiliate thereofin any of theCompanies, includingEco-Stim Argentina.
(i) No Conversion. No Company has taken any action to convert any Transferred Notes into Equity Interests of the Issuer or any other Company.
Section 6. FutureCooperation. Each Party agrees to provide such furthernotifications and execute such otherdocuments andinstruments as may be reasonably requested for the purpose of giving effect to or evidencing thetransactions contemplated bythis Agreement and the other TransactionDocuments.
Section 7. Binding Effect. ThisAgreementshall be binding upon, and shall inure to thebenefit of, theparties hereto and their respective successors and assigns; provided that thisAgreement may not be assigned by any Party without theconsent of theother Parties hereto.
Section 8. Severability. The provisions of thisAgreement are intended to beseverable. If any provisions of thisAgreement shall be held invalid orunenforceable in whole or in part in any jurisdiction, such provision shall, as to suchjurisdiction, be ineffective to the extent ofsuch invalidity or enforceabilitywithout inany manner affecting the validity or enforceability of such provision in any other jurisdiction or theremaining provisions of thisAgreement in anyjurisdiction.
Section 9. Execution in Counterparts;Amendment. ThisAgreement may be executed in anynumber of counterparts, each of which, when so executed, shall bedeemed to be an original and all of which, taken together, shall constitute a singularagreement. Delivery of an executed counterpart of a signature page to this Agreement byfacsimile or email shall be as effective as delivery of an original executedcounterpart of thisAgreement. ThisAgreement may beamended ormodified only by a writteninstrument signedby each Party.
Section 10. GoverningLaw. ThisAgreement and the other TransactionDocuments, and the rights and obligations of the Parties hereunder and thereunder, and anyclaim, controversy or dispute arising under or in connectionherewith ortherewith shall be governedby, and construed inaccordance with, thelaws of the State of New York. Each Party irrevocably waives all right to trial by jury in any action,proceeding or counterclaim (whether based on contract, tort orotherwise) arising out of or relating tothis Agreement or theother TransactionDocuments or anytransaction contemplated hereby or thereby or the actions of the Parties in the negotiation,performance orenforcement hereof. By its execution and delivery of thisAgreement, each of the Parties irrevocably and unconditionallyagrees that any legal action, suit or proceeding against it with respect to anymatter under or arising out of or in connectionwith this Agreement or any other Transaction Document or any of the transactioncontemplated hereby or thereby, or for recognition or enforcement of anyjudgment rendered in any such action, suit or proceeding,may be brought in any federal or state court in the borough of Manhattan, the city of New York, and by execution anddelivery of thisAgreement, each of the Parties hereby irrevocably accepts andsubmits itself to thenonexclusive jurisdiction of each such court, generallyand unconditionally,with respect toanysuchaction,suit orproceeding.
Section 11. Indemnification. Each Party heretoagrees, irrespective of the occurrence of the Closing Date, that if (x) any representation and warrantymade by such Party under thisAgreement or any otherTransaction Document proves to beuntrue or incorrect at the time made or (y) suchParty breaches, violates or is in default of any covenant contained in thisAgreement or any other TransactionDocument (each of clauses (x) and (y), a “Breach”), such Party (the “BreachingParty”) shall indemnify and hold harmless each other Party hereto and each ofsuch otherParty’s affiliates and suchother Party’s and its affiliates’ officers,directors, employees, agents, advisors, legal counsel, consultants, representatives, controlling persons,members and successors andpermitted assigns (each, an“Indemnified Person”)from and against any and all losses, claims,damages, expenses (including, withoutlimitation, reasonable fees anddisbursements of counsel) andliabilities (including anyactions orother proceedings commenced orthreatened inrespect thereof),
joint orseveral, that may be incurred by or asserted or awarded against anyIndemnified Person (including,without limitation, in connection with any action, investigation, litigationor proceeding or the preparation or conduct of adefense in connection therewith (whether or not suchIndemnified Person is a party to any such action,investigation, litigationor proceeding)), in eachcase, arisingoutof or inconnection with or byreasonof such Breach, except tothe extent suchclaim, damage, loss, liabilityor expense is found in a final, non-appealablejudgmentby a court ofcompetent jurisdiction tohave resulted solely from such Indemnified Person’sgross negligence or willfulmisconduct. EachBreaching Partyherebyagrees toreimburse eachIndemnified Person promptly upondemand for all reasonable anddocumentedlegal and other expenses incurred by suchIndemnified Person in connection with investigating, preparing to defend or defending, or providing evidence in or preparing to serve or serving as a witness with respect to any suchinvestigation, litigation or proceeding to which theindemnityin this Section 11 applies (including, withoutlimitation, inconnection with the enforcement of theindemnification obligations set forth herein). NoIndemnified Person shall have any liability (whether direct or indirect, in contract, tort orotherwise) to anyCompany or BreachingParty, except for directdamages(asopposed to special,indirect, consequential orpunitive damages including, without limitation, any loss of profits,business or anticipated savings)determinedin a final, non-appealablejudgment by a court ofcompetentjurisdiction to haveresulted solelyfromsuch IndemnifiedPerson’s grossnegligenceor willfulmisconduct.
Section 12. Costs and Expenses. Each Party to thisAgreement shall be responsible for such Party’s own expenses in connection with the transactionscontemplated hereunder and thisAgreement; provided that (i) the Issuer shall be required to pay orreimburse the cost of any opinion ofcounsel that the Issuer requires in connection withthe transactionscontemplated by thisAgreement and (ii) with respect to the Issuer and the Buyer only, theprovisions of this Section 12 shall be subject to any expensereimbursement agreement between theIssuer and the Buyer as ineffect on the date hereof.
Section 13. Entire Agreement.This Agreement, together with the other TransactionDocuments, represents the entireagreement of theParties relating to the subjectmatter hereof and supersedesall prioragreements and understandings, oral or written, if any,relating tothe subject matter contemplated herein.
Section 14. Survival. Theprovisions of thisAgreement relating to representations, warranties, covenants, costs and expenses,amendments, indemnification,governing law, waiver of jurytrial and jurisdiction shallsurvive the expiration andtermination of thisAgreement and/or the Closing.
Section 15. Notices. All notices, requests, demands and othercommunications to any Party given under thisAgreement shall be in writing, hand delivered or sentby overnight courier, electronictransmission ortelecopier (with confirmation received) tosuch Partyat the address, electronicmail address or telecopy number specified for such Party onSchedule 15hereto, or at such other address, electronic mail address or telecopy number as such Party may subsequently request in writing. All notices,requests, demands and other communications will bedeemeddeliveredwhenactually received.
[Remainder of page left blank intentionally]
IN WITNESS WHEREOF, each Party hereto has caused this Agreement to be executed by its authorized signatory as of the date first written above.
ACM EMERGING MARKETS MASTER FUND I, L.P., acting through ALBRIGHT CAPITAL MANAGEMENT LLC, its general partner, as Seller | ||
By: | /s/ Gregory B. Bowes | |
Name: Gregory B. Bowes | ||
Title: Managing Principal |
ACMMULTl-STRATEGY DELAWARE HOLDING LLC | ||
By: | /s/ Nelson Oliveira | |
Name: Nelson Oliveira | ||
Title: Manager |
FT SOF VII HOLDINGS, LLC, as Buyer | ||
By: | /s/ Brian Meyer | |
Name: Brian Meyer | ||
Title: Authorized Person |
COMPANIES | ||
ECO-STIM ENERGY SOLUTIONS, INC. | ||
By: | /s/ Alexander Nickolatos | |
Name: Alexander Nickolatos | ||
Title: CFO | ||
ECOSTIM, INC. | ||
By: | /s/ Alexander Nickolatos | |
Name: Alexander Nickolatos | ||
Title: CFO | ||
ECO-STIM ENERGY SOLUTIONS ARGENTINA S.A. | ||
By: | /s/ Carlos A. Fernandez | |
Name: Carlos A. Fernandez | ||
Title: Chairman | ||
VIKING ROCK AS | ||
By: | /s/ Jon Christopher Boswell | |
Name: Jon Christopher Boswell | ||
Title: Chairman | ||
VIKING ROCK HOLDING AS | ||
By: | /s/ Jon Christopher Boswell | |
Name: Jon Christopher Boswell | ||
Title: Chairman | ||
ECO-STIM ENERGY SOLUTIONS ARGENTINA S.A. | ||
By: | /s/ Ernesto Oscar Sotomayor | |
Name: Ernesto Oscar Sotomayor | ||
Title: Regular Director |
SCHEDULE 2(a)
Wire Instructions
SCHEDULE 3(c)
Seller Consents
None.
SCHEDULE 5(c)
Company Consents
None.
SCHEDULE 15
Notice Information
EXHIBIT A
NOTE DOCUMENTS
(1) | Convertible Note Facility Agreement dated as of May 28, 2014 by and between the Issuer and the Seller |
(2) | First Amendment to Convertible Note Facility Agreement, dated as of May 28, 2015, by and between the Issuer and the Seller |
(3) | Convertible Promissory Note dated May 28, 2014 between the Issuer and the Seller, as the Payee in the amount of $22,000,000 |
(4) | Security and Guaranty Agreement dated as of May 28, 2014 by and among the Issuer Viking Rock Holding, Viking Rock AS and Seller, as the Secured Party |
(5) | Security Agreement dated May 28, 2014 between Viking Rock Holding, as Pledgor and Seller, as Pledgee |
(6) | Security Agreement dated May 28, 2014 between Viking Rock AS, as Pledgor and Seller, as Pledgee |
(7) | Share Pledge Agreement dated May 28, 2014 by and between the Issuer, as Pledgor, and the Seller, as Pledgee for 100% of the shares of Viking Rock Holding |
(8) | Share Pledge Agreement dated May 28, 2014 by and between Viking Rock Holding, as Pledgor, and the Seller, as Pledgee, for 100% of the shares of Viking Rock |
(9) | Viking Intercompany Note dated as of May 28, 2014 by and between Viking Rock AS, as Payor, and Issuer, as Payee |
(10) | Shares Pledge Agreement dated as of May 28, 2014 by and between Issuer and Seller for 65% of the shares of Eco-Stim Argentina, together with the Acceptance Letter |
(11) | Share Purchase Agreement dated May 14, 2014 between Ernesto Oscar Sotomayor and Maria Alejandra Suarez, as the Sellers, and Issuer for 100% of the shares of Tango Rock S.A. |
(12) | Well Stimulation Asset Package Rental Agreement dated as of May 27, 2014 by and between Viking Rock and Eco-Stim Argentina |
(13) | Well Stimulation Support Package Rental Agreement dated as of May 27, 2014 by and between Viking Rock and Eco-Stim Argentina |
(14) | Parent Company Guarantee dated as of May 28, 2014 by Eco-Stim Energy Services, Inc., in favor of Viking Rock |
(15) | Service Agreement dated May 22, 2014 by and between Medanito S.A. and Eco-Stim Argentina |
(16) | Assignment and Assumption Agreement dated May 28, 2014 by and between Eco-Stim Argentina and Viking Rock assigning the rights and obligations under the Purchase Agreement dated May 14, 2014 by and between Eco-Stim Argentina and QM Equipment SA |
(17) | General Terms & Conditions of Purchase Option dated May 14, 2014 by and between QME USA, LLC and the Issuer |
(18) | Assignment and Assumption Agreement dated May 28, 2014 by and between Issuer and Viking Rock assigning the rights and obligations under the Purchase Order dated January 8, 2014 between Issuer and Stewart & Stevenson Manufacturing Technologies LLC |
(19) | Purchase Order dated January 8, 2014 between Issuer and Stewart & Stevenson Manufacturing Technologies LLC |
(20) | Bill of Sale of Equipment dated May 28, 2014 between SageRider, Inc. and Viking Rock |
(21) | Exclusive Sales Agreement dated April 30, 2014 between Fotech Oil & Gas Solutions Limited and Issuer |
(22) | Share Certificate No. 003 of the Issuer dated May 9, 2014 and Irrevocable Stock Power for Eco-Stim Texas, executed in blank |
(23) | Share Certifcates No. 5 and No. 6 of Eco-Stim Argentina dated May 28, 2014 (in Spanish) |
(24) | Share Certificates Nos. 1-4 of Tango Rock S.A. (in Spanish) |
(25) | UCC-1 Financing Statement of the Issuer as Debtor and the Seller as the Secured Party |
(26) | UCC-1 Financing Statement of Eco-Stim Texas as Debtor and the Seller as the Secured Party |
(27) | UCC-1 Financing Statement of Viking Rock Holding as Debtor and the Seller as the Secured Party |
(28) | UCC-1 Financing Statement of Viking Rock AS as Debtor and the Seller as the Secured Party |
(29) | Release Undertaking by the Seller dated May 25, 2014 |
(30) | Acknowledgement of Pledge of Bank Accounts from Sparebanken Møre to the Seller with respect to Viking Rock Holding dated May 30, 2014 |
(31) | Certificate of Insurance dated May 27, 2014 with the Seller and Albright Capital Management, LLC as the certificate holder |
(32) | Shareholders Agreement dated November 30, 2016 by and among the Issuer, Eco-Stim Texas and ACM Multi-Strategy Delaware Holdings LLC, a subsidiary of the Seller |
(33) | Power of Attorney on behalf of Carlos Alberto Fernandez dated December 6, 2016 |
(34) | Power of Attorney on behalf of Jon Christopher Boswell dated November 30, 2016 |
(35) | Notice of Pledge from the Issuer to Viking Rock Holding dated May 28, 2014 |
(36) | Notice of Pledge from Viking Rock Holding to Viking Rock AS dated May 28, 2014 |
(37) | Notice of Pledge of Rental Agreement Claims and Rental Guarantee Claims from Viking Rock AS to Eco-Stim Argentina and the Issuer dated May 28, 2014 |
(38) | Notice from Viking Rock AS to Sparebanken Møre dated May 28, 2014 |
(39) | Acknowledgement of Pledge of Bank Accounts from Sparebanken Møre to the Seller with respect to Viking Rock AS dated May 30, 2014 |
(40) | Notice from Viking Rock Holding to Sparebanken Møre dated May 28, 2014 |
(41) | Acknowledgement of Pledge of Bank Accounts from Sparebanken Møre to the Seller with respect to Viking Rock Holding dated May 30, 2014 |
(42) | The following waivers: |
Date | CNA Section(s) | Reason for Waiver |
11/11/14 | 6.7A | Use of second draw topurchase (not lease) Argentine assets andpartial |
1/21/15 | 1.1 & 7.12 | Change ofstatutory accountantin Norway |
2/2/15 | 7.1, 7.2 & 8.2 | Installment purchase of Green Fieldequipment & assoc. liens |
12/16/15 | 7.9(iii) | Repurchase ofshares for 6months, ltd. to $250,00 in 2015 |
2/11/16 | 7.13, 8.1D & 8.2 | EBIDTA/leasepaymentcoverage ratio for FY 2015 |
7/25/2016 | 6.20(A)(z); 8.2 | U.S. cashbalance below $3 million—deferred until 6/30/17 |
8/31/16 | 7.1, 7.2, 8.1D & 8.2 | Installment purchase of tractors in Argentina |
11/29/16 | 7.1, 7.2, 8.1D, 8.2 & 9.4 | Incurrence of $2million ofsecured debt; release of liens on turbine-powered frac units |
EXHIBIT B
SHARE DOCUMENTS
(1) | SecuritiesPurchase OptionAgreement datedMay 28, 2014 by andamongthe Issuer and the Seller for the right topurchase 1,333,333 of Issuer’s shares |
(2) | Registration RightsAgreement dated as of May 28, 2014, by andamong the Issuer, the Seller, and Jon Christopher Boswell, Mark Stevenson, Carlos Fernandez, Alexander Nickolatos, Craig Murrin,Bobby Chapman and MiguelDiVincenzo, as theManagement Stockholders |
(3) | Stockholder RightsAgreementdated as of May 28, 2014among the Issuer, as theCompany,the Seller, as the Investor, and Jon Christopher Boswell, Mark Stevenson, CarlosFernandez, Alexander Nickolatos,Craig Murrin, BobbyChapmanand Miguel DiVincenzo, as theManagement Stockholders |
(4) | Spousal Consents to the Stockholder RightsAgreement, dated on or before May 28, 2014 |
(5) | Thefollowing waivers: |
Date | CNA Section(s) | Reason for Waiver |
11/12/2014 | 3(a) RightsAgreement | Waiver of 10 day notice |
2/6/15 | 3.01(f) | Waiver of 40%ROFO re2015 public offerings |
7/13/2016 | 3.01(f) | Waiver of 40%ROFO re375k of shares |
8/31/16 | 3.01&8.2 | Waiver of 40% ROFO re.$5,801,796 ATM offering |
8/31/16 | 7.1, 7.2, 8.1D & 8.2 | Installmentpurchase oftractorsin Argentina |
11/29/16 | 7.1, 7.2, 8.1D, 8.2 & 9.4 | Incurrence of $2million ofsecured debt; release of liens on turbine-powered frac units |
EXHIBIT C
PHYSICAL DELIVERABLES
(1) | Share Certificate No. 003 of Eco-Stim Texas dated May 9, 2014 and Irrevocable Stock Power for Eco-Stim Texas, executed in blank |
(2) | Share Certificates No. 5 and No. 6 of Eco-Stim Argentina dated May 28, 2014 (in Spanish) |
(3) | ConvertiblePromissoryNote dated May 28, 2014madeby the Issuer to the Seller as the Payee in theamount of $22,000,000 |
(4) | VikingIntercompany Note dated as of May 28, 2014 by and between Viking Rock AS, as Payor, and Issuer, as Payee |