- Amended Statement of Ownership: Solicitation (SC 14D9/A)
24 August 2010 - 11:30PM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14D-9
(RULE 14d-101)
SOLICITATION/RECOMMENDATION STATEMENT UNDER
SECTION 14(d)(4) OF THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 1)
SUPERIOR WELL SERVICES, INC.
(Name of Subject Company)
SUPERIOR WELL SERVICES, INC.
(Name of Person Filing Statement)
Common Stock, par value $0.01 per share
(Title of Class of Securities)
86837X105
(CUSIP Number of Class of Securities)
David E. Wallace
Chief Executive Officer
1380 Rt. 286 East, Suite #121
Indiana, Pennsylvania 15701
(724) 465-8904
(Name, address and telephone number of person authorized to receive
notices and communications on behalf of the persons filing statement)
With copies to:
Brett E. Braden
Michael E. Dillard
Latham & Watkins LLP
717 Texas Avenue, Suite 1600
Houston, Texas 77002
(713) 546-5400
o
Check the box if the filing relates solely to preliminary
communications made before the commencement of a tender
offer.
This Amendment No. 1 amends and supplements the Solicitation/Recommendation Statement on
Schedule 14D-9 of Superior Well Services, Inc. (the
Company
) filed with the Securities
and Exchange Commission (the
SEC
) on August 12, 2010 (the
Schedule 14D-9
).
The Schedule 14D-9 relates to the tender offer by Diamond Acquisition Corp., a Delaware
corporation and a wholly-owned subsidiary of Nabors Industries Ltd., a Bermuda exempt company,
disclosed in the Tender Offer Statement on Schedule TO filed with the SEC on August 12, 2010, as amended by Amendment No. 1 thereto filed with the SEC on August 24, 2010, to purchase all of the outstanding shares of common stock of the Company, par value
$0.01 per share (the
Shares
), at a purchase price of $22.12 per Share, net to the seller
in cash, without interest, upon the terms and subject to the conditions set forth in the offer to
purchase, dated August 11, 2010 (as amended or supplemented from time to time, the
Offer to
Purchase
), and in the related letter of transmittal (as amended or supplemented from time to
time, the
Letter of Transmittal
). Copies of the Offer to Purchase and the Letter of
Transmittal were filed with the Schedule 14D-9 as
Exhibits (a)(1)(A)
and
(a)(1)(B)
, respectively.
Capitalized terms used and not defined herein shall have the meanings assigned to such terms
in the Schedule 14D-9.
Item 2.
Identity and Background of Filing Person.
The second sentence of the third paragraph under the heading Tender Offer on page 3 is
hereby amended and restated as follows:
For the complete terms of the Offer, holders of the Shares are referred to the Offer to
Purchase and related Letter of Transmittal, copies of which have been filed as
Exhibits
(a)(1)(A)
and
(a)(1)(B)
hereto, respectively, and which are incorporated herein by
reference.
The first paragraph on page 4 is hereby amended and restated as follows:
All information contained in this Schedule 14D-9 or incorporated herein by reference
concerning Parent, Purchaser or their affiliates, or actions or events with respect to any of them,
was provided to the Company by Parent, and the Company has not independently verified such
information or the existence or occurrence of any circumstances or events that have not been
disclosed by Parent but that may affect the significance, completeness or accuracy of such
information.
Item 3.
Past Contacts, Transactions, Negotiations and Agreements.
The second paragraph under the heading Reductions for Parachute Payments on page 7 is hereby
amended and restated as follows:
For the complete terms of the employment agreements, holders of the Shares are referred to
such employment agreements, which are included as
Exhibits (e)(2)
through
(e)(7)
hereto and are incorporated herein by reference.
The first paragraph on page 9 is hereby amended and restated as follows:
For the complete terms of the Indemnification Agreements, holders of the Shares are
referred to the Indemnification Agreements, which are included as
Exhibits (e)(8)
through
(e)(17)
hereto and are incorporated herein by reference.
The fourth paragraph under the heading Representation on the Board of Directors on page 10 is
hereby amended and restated as follows:
For the complete terms regarding representation on the Board of Directors, holders of the
Shares are referred to the Merger Agreement, which has been included as
Exhibit (e)(1)
hereto and is incorporated herein by reference.
1
The second sentence in the first paragraph under the heading Arrangements between the Company
and Parent and Purchaser Merger Agreement on page 10 is hereby amended and restated as
follows:
For the complete terms of the Merger Agreement, holders of the Shares are referred to the
Merger Agreement, which has been included as
Exhibit (e)(1)
hereto and is incorporated
herein by reference.
The second and third sentences in the second paragraph under the heading Arrangements between
the Company and Parent and Purchaser Merger Agreement on page 10 are hereby deleted and
replaced with the following sentence:
The Merger Agreement has been included as an exhibit to this Schedule 14D-9 to provide the
Companys stockholders with information regarding the terms of the Merger Agreement.
The third sentence on page 11 is hereby deleted and replaced with the following sentence:
For the complete terms of the Confidentiality Agreements, holders of the Shares are
referred to the Confidentiality Agreements, which have been included as
Exhibits (e)(19)
and
(e)(20)
hereto and are incorporated herein by reference.
Item 4.
The Solicitation or Recommendation.
The first sentence under the heading Reasons for the Recommendation of the Board of Directors on
page 16 is hereby amended and restated as follows:
In evaluating the Offer and the Merger, the Board of Directors consulted with the Companys
senior management, the Companys legal advisor, Latham & Watkins LLP, and the financial advisor to
the Board of Directors, Simmons, and, in the course of reaching its determination to approve the
Merger Agreement, the Offer, the Merger and the Contemplated Transactions and to recommend that the
Companys stockholders accept the Offer and tender their Shares pursuant to the Offer and, if
required, adopt the Merger Agreement and approve the Merger, the Board of Directors considered the
following material factors and benefits of the Offer and the Merger in determining to accept the
Offer and to recommend that the Companys stockholders accept the Offer:
The second sentence in the second paragraph under the heading Projected Financial Information
Regarding the Company on page 19 is hereby amended and restated as follows:
None of Parent, Simmons or their respective affiliates assumes any responsibility
for the accuracy of this information.
The first and second sentences in the third paragraph under the heading Opinion of Simmons on
page 20 are hereby deleted and replaced with the following sentence:
For the complete terms of Simmons opinion, holders of the Shares are referred to
the full text of Simmons written opinion to the Board of Directors, which describes,
among other things, the assumptions made, procedures followed, factors considered and
limitations on the review undertaken. The full text of Simmons written opinion is
attached as
Annex II.A
hereto and is incorporated by reference herein in its
entirety.
2
Item 6.
Interest in Securities of the Subject Company.
Item 6 of the Schedule 14D-9 is hereby amended and restated as follows:
No transactions with respect to the Shares have been effected by the Company or, to the
knowledge of the Company, by any of its executive officers, directors, affiliates or subsidiaries
during the past 60 days, except for the following:
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Certain of the Companys directors and officers, each in his capacity
as a stockholder of the Company, entered into the Voting Agreement,
dated August 6, 2010, with Parent and Purchaser, as described under
Item 3 above; and
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On June 28, 2010, pursuant to and in accordance with the Companys
defined contribution profit sharing/401(k) retirement plan, the
Company made the following matching contributions to employee
retirement plans. On that date, the closing price of the Shares was $17.14.
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David E. Wallace
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249 Shares
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Rhys R. Reese
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185 Shares
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Thomas W. Stoelk
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143 Shares
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Daniel Arnold
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138 Shares
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Michael J. Seyman
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138 Shares
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Other employees*
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18,537 Shares
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*
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Employees who are not executive officers or directors of the Company
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On July 1, 2010, pursuant to and in accordance with the Companys stock
incentive plan, the Company granted a total of 2,250 Shares to three employees who are
not executive officers or directors of the Company. On that date, the closing price of the Shares was $16.87.
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See chart of transactions below.
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Date of
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Number
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Identity of Person
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Transaction
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of Shares
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Price Per Share
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Nature of Transaction
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Jacob B. Linaberger
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August 2, 2010
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15,000
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$
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19.13$19.51
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Sale effected
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pursuant to a Rule
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10b5-1 trading plan
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adopted by the
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officer on November
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14, 2009
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July 1, 2010
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15,000
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$
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16.43$17.13
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Sale effected
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pursuant to a Rule
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10b5-1 trading plan
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adopted by the
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officer on November
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14, 2009
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June 1, 2010
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15,000
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$
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14.90$15.85
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Sale effected
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pursuant to a Rule
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10b5-1 trading plan
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adopted by the
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officer on November
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14, 2009
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Rhys R. Reese
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August 3, 2010
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15,000
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$
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19.00$19.10
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Sale effected
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pursuant to a Rule
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10b5-1 trading plan
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adopted by the
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officer on November
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30, 2009
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July 6, 2010
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15,000
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$
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16.67$17.07
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Sale effected
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pursuant to a Rule
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10b5-1 trading plan
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adopted by the
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officer on November
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30, 2009
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June 1, 2010
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15,000
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$
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15.07$15.57
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Sale effected
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pursuant to a Rule
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10b5-1 trading plan
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adopted by the
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officer on November
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30, 2009
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3
Item 8.
Additional Information.
The first sentence in the second paragraph under the heading Appraisal Rights on page 28 is
hereby amended and restated as follows:
The foregoing information is only a summary of the rights of stockholders seeking appraisal
rights under Delaware law and the procedures to be followed by stockholders desiring to exercise
any appraisal rights available thereunder.
Item 9.
Exhibits.
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Exhibit
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Number
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Description
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(a)(1)(A)
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Offer to Purchase, dated August 11, 2010 (incorporated
herein by reference to Exhibit (a)(1)(A) to Purchasers
Offer to Purchase Statement on Schedule TO, filed by Parent
and Purchaser, with respect to the Company on August 12,
2010).
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(a)(1)(B)
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Form of Letter of Transmittal (incorporated herein by
reference to Exhibit (a)(1)(B) to the Schedule TO, filed by
Parent and Purchaser, with respect to the Company on August
12, 2010).
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(a)(1)(C)
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Form of Notice of Guaranteed Delivery (incorporated herein
by reference to Exhibit (a)(1)(C) to the Schedule TO, filed
by Parent and Purchaser, with respect to the Company on
August 12, 2010).
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(a)(1)(D)
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Form of Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees (incorporated herein by
reference to Exhibit (a)(1)(D) to the Schedule TO, filed by
Parent and Purchaser, with respect to the Company on August
12, 2010).
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(a)(1)(E)
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Form of Letter to Clients for use by Brokers, Dealers,
Commercial Banks, Trust Companies and Other Nominees
(incorporated herein by reference to Exhibit (a)(1)(E) to
the Schedule TO, filed by Parent and Purchaser, with
respect to the Company on August 12, 2010).
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(a)(1)(F)
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IRS Form W-9 (incorporated herein by reference to Exhibit
(a)(1)(F) to the Schedule TO, filed by Parent and
Purchaser, with respect to the Company on August 12, 2010).
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(a)(3)*
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Information Statement pursuant to Section 14(f) of the
Exchange Act and Rule 14f-1 thereunder, attached as
Annex
I
.
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(a)(2)(A)
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Joint Press Release, dated August 9, 2010, issued by Parent
and the Company (incorporated herein by reference to
Exhibit 99.1 to the Companys Current Report on Form 8-K
filed August 9, 2010).
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(a)(2)(B)*
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Opinion of Simmons & Company International, dated August 6,
2010, attached as
Annex II.A
.
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(e)(1)
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Agreement and Plan of Merger, dated as of
August 6, 2010, by and among Parent,
Purchaser and the Company (incorporated
herein by reference to Exhibit 2.1 to the
Companys Current Report on Form 8-K filed
August 9, 2010).
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(e)(2)
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Amended and Restated Employment Agreement
between David E. Wallace and Superior Well
Services, Inc. dated September 15, 2008
(incorporated by reference to Exhibit 10.1
to Form 8-K filed on September 18, 2008).
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(e)(3)
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Amended and Restated Employment Agreement
between Jacob B. Linaberger and Superior
Well Services, Inc. dated September 15,
2008 (incorporated by reference to Exhibit
10.2 to Form 8-K filed on September 18,
2008).
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(e)(4)
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Amended and Restated Employment Agreement
between Rhys R. Reese and Superior Well
Services, Inc. dated September 15, 2008
(incorporated by reference to Exhibit 10.3
to Form 8-K filed on September 18, 2008).
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(e)(5)
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Amended and Restated Employment Agreement
between Thomas W. Stoelk and Superior Well
Services, Inc. dated September 15, 2008
(incorporated by reference to Exhibit 10.4
to Form 8-K filed on September 18, 2008).
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(e)(6)
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Employment Agreement, dated as of December
21, 2009, by and between Superior Well
Services, Inc. and Michael Seyman
(incorporated by reference to Exhibit 10.1
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Exhibit
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Number
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Description
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to Form 8-K filed on December 24, 2009).
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(e)(7)
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Employment Agreement between Daniel Arnold
and Superior Well Services, Inc., dated May
14, 2007 (incorporated by reference to
Exhibit 10.1 to Form 10-Q filed on August
8, 2007.
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(e)(8)
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Indemnification Agreement between David E.
Wallace and Superior Well Services, Inc.,
dated August 3, 2005 (incorporated by
reference to Exhibit 10.7 to Form 8-K filed
on August 3, 2005).
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(e)(9)
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Indemnification Agreement between Jacob B.
Linaberger and Superior Well Services,
Inc., dated August 3, 2005 (incorporated by
reference to Exhibit 10.8 to Form 8-K filed
on August 3, 2005).
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(e)(10)
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Indemnification Agreement between Thomas W.
Stoelk and Superior Well Services, Inc.,
dated August 3, 2005 (incorporated by
reference to Exhibit 10.9 to Form 8-K filed
on August 3, 2005).
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(e)(11)
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Indemnification Agreement between Rhys R.
Reese and Superior Well Services, Inc.,
dated August 3, 2005 (incorporated by
reference to Exhibit 10.10 to Form 8-K
filed on August 3, 2005).
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(e)(12)
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Indemnification Agreement between Mark A.
Snyder and Superior Well Services, Inc.,
dated August 3, 2005 (incorporated by
reference to Exhibit 10.12 to Form 8-K
filed on August 3, 2005).
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(e)(13)
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Indemnification Agreement between David E.
Snyder and Superior Well Services, Inc.,
dated August 3, 2005 (incorporated by
reference to Exhibit 10.13 to Form 8-K
filed on August 3, 2005).
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(e)(14)
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Indemnification Agreement between Charles
C. Neal and Superior Well Services, Inc.,
dated August 3, 2005 (incorporated by
reference to Exhibit 10.14 to Form 8-K
filed on August 3, 2005).
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(e)(15)
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Indemnification Agreement between John A.
Staley, IV and Superior Well Services,
Inc., dated August 3, 2005 (incorporated by
reference to Exhibit 10.15 to Form 8-K
filed on August 3, 2005).
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(e)(16)
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Indemnification Agreement between Anthony
J. Mendicino and Superior Well Services,
Inc. dated August 30, 2005 (incorporated by
reference to Exhibit 10.16 to the Companys
Quarterly Report on Form 10-Q filed on
September 1, 2005).
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(e)(17)
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Indemnification Agreement between Daniel
Arnold and Superior Well Services, Inc.
dated May 14, 2007 (incorporated by
reference to Exhibit 10.2 to the Companys
Quarterly Report on Form 10-Q filed on
August 8, 2007).
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(e)(18)
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Tender and Voting Agreement, dated as of
August 6, 2010, by and among Parent,
Purchaser, and the stockholders of the
Company party thereto (incorporated herein
by reference to Exhibit 2.2 to the
Companys Current Report on Form 8-K filed
August 9, 2010).
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(e)(19)**
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Confidentiality Agreement, dated as of
April 30, 2010, between the Company and
Nabors Industries, Inc.
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(e)(20)**
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Confidentiality Agreement, dated as of May
20, 2010, between the Company and Nabors
Industries, Inc.
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*
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previously filed
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**
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filed herewith
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5
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that
the information set forth in this Statement is true, complete and correct.
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SUPERIOR WELL SERVICES, INC.
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By:
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/s/ David E. Wallace
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David E. Wallace
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Chief Executive Officer
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Dated: August 24, 2010
6
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