Keane, Keane would be required to pay C&J a termination fee of $30 million. In addition, upon termination of the Merger Agreement under reciprocal specified circumstances, including the
termination by Keane in the event of a Change of Recommendation by the board of directors of C&J, C&J would be required to pay Keane a termination fee of $30 million. In addition, if the Merger Agreement is terminated because of a
failure of C&Js stockholders approve the adoption of the Merger Agreement or Keanes stockholders to approve the Keane Stock Issuance, C&J or Keane, as applicable, may be required to reimburse the other party for its actual
transaction expenses in an amount not to exceed $7.5 million. In no event will either party be entitled to receive more than one termination fee, net of any expense reimbursement.
The foregoing description of the Merger Agreement, and the transactions contemplated thereby, in this Current Report on Form
8-K
is only a summary, does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, a copy of which is attached hereto as Exhibit 2.1 and incorporated
herein by reference.
The Merger Agreement has been included to provide investors with information regarding its terms. It is not intended
to provide any other factual information about Keane or C&J. The representations, warranties and covenants contained in the Merger Agreement were made only for purposes of the Merger Agreement as of the specific dates therein, were 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 are not third-party beneficiaries
under the Merger Agreement and 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 parties thereto or any of their respective subsidiaries
or affiliates. Moreover, information concerning the subject matter of representations and warranties may change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in Keanes or C&Js
public disclosures, as applicable.
Support Agreement
In accordance with the terms of the Merger Agreement, Keane Investor, which beneficially owns 51,668,175 shares of Keane common stock, has
entered into a Support Agreement and Irrevocable Proxy (the Support Agreement), dated June 16, 2019, by and among Keane Investor, Cerberus Capital Management, L.P. (Cerberus), an affiliate of Keane Investor, and C&J.
The Support Agreement places certain restrictions on the transfer of the shares of Keane held by Keane Investor and Cerberus, including, subject to certain exceptions, that for the period commencing at the Effective Time and continuing for
forty-five days thereafter, Keane Investor and Cerberus shall not sell, transfer, assign, pledge, encumber or otherwise dispose of, directly or indirectly, their shares of Keane common stock or any other securities convertible into or exchangeable
for Keane common stock, and includes covenants as to the voting of such shares (a) in favor of the Keane Stock Issuance and (b) against (i) any proposal made in opposition to the Keane Stock Issuance, the adoption of the Merger Agreement
or that is intended, that could reasonably be expected, or the effect of which could reasonably be expected, to impede, interfere with, delay, postpone, discourage, adversely affect, compete or be inconsistent with the Merger, the Keane Stock
Issuance or any other transaction contemplated by the Merger Agreement, (ii) any Acquisition Proposal and (iii) any action or agreement that would result in a breach of any representation, warranty, covenant or agreement or any other
obligation of Keane or Merger Sub under the Merger Agreement or of Keane Investor. However, if the board of directors of Keane (at the recommendation of the Special Committee) effects a Change of Recommendation, the obligation of Keane Investor to
vote its shares in the manner set forth above shall apply only with respect to the lesser of (a) all of the shares of Keane common stock which Keane Investor is the record or beneficial owner and (b) such portion of Keane common stock
equal to 35% of the aggregate outstanding shares of Keane common stock.
The foregoing description of the Support Agreement, and the
transactions contemplated thereby, in this Current Report on Form
8-K
is only a summary and does not purport to be complete and is qualified in its entirety by reference to the full text of the Support
Agreement, a copy of which is attached hereto as Exhibit 10.1 and incorporated herein by reference.
Item 7.01 Regulation FD Disclosure.
On June 17, 2019, C&J and Keane issued a joint press release announcing the execution of the Merger Agreement and the entry into the
foregoing transactions. A copy of the joint press release is attached as Exhibit 99.1 hereto and is incorporated herein by reference.
On
June 17, 2019, C&J and Keane provided supplemental information regarding the Merger in a joint investor presentation published to their respective websites. A copy of the joint investor presentation is attached as Exhibit 99.2 hereto and is
incorporated herein by reference.
In accordance with General Instruction B.2 of Form
8-K,
the
information set forth in this Item 7.01 and the attached Exhibit 99.1 and Exhibit 99.2 shall not be deemed filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended.