- Amended Statement of Ownership: Solicitation (SC 14D9/A)
August 27 2010 - 4:24PM
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. 2)
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
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Check the box if the filing relates solely to preliminary
communications made before the commencement of a tender
offer.
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TABLE OF CONTENTS
This Amendment No. 2 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 (together with any amendments and
supplements thereto, 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 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 although the Company has not independently verified such
information, the Company has no knowledge of 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 4.
The Solicitation or Recommendation.
The fourth paragraph on page 15 is hereby amended and restated as follows:
On August 2, 2010, Mr. Wallace communicated with members of the Board of Directors
and reported on his August 1, 2010 conversation with Mr. Isenberg. Mr. Wallace
communicated that there were still several significant issues remaining to be resolved in
the merger documents and he doubted Mr. Isenberg would increase the offer price to more
than $22.50. Representatives from Latham & Watkins LLP communicated with Mr. Wallace
regarding the remaining material issues in the draft merger documents, and Mr. Wallace
communicated with members of the Board of Directors regarding the remaining issues. The
Board of Directors indicated to Mr. Wallace that he should communicate with Mr. Isenberg,
and that Latham & Watkins LLP should communicate with Parents legal counsel, regarding
the remaining issues.
The table under the heading Projected Financial Information Regarding the Company on
page 19 is hereby amended and restated as follows:
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(Dollar amounts in millions)
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2010E
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2011E
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Revenue
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$
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689.3
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$
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805.0
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Adjusted EBITDA
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125.6
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180.8
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Net income available to holders of Shares
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14.6
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49.4
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Reconciliation of Adjusted EBITDA to Net Income
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Net income before dividends on preferred stock
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$
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17.6
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$
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52.5
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Income tax expense
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10.7
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29.5
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Interest expense
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10.4
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4.3
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Stock compensation expense
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4.9
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5.8
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Depreciation, amortization and accretion
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82.0
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88.7
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Adjusted EBITDA
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$
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125.6
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$
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180.8
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The following sentence is hereby added to the end of the last paragraph under the
heading Projected Financial Information Regarding the Company on page 19:
Included in the above table is a reconciliation of Adjusted EBITDA to net income,
its most directly comparable financial measure prepared in accordance with GAAP.
Item 8.
Additional Information.
The following sentence is hereby added to the end of the first paragraph under the heading
Litigation:
For the complete terms of the complaint, holders of the Shares are referred to the
complaint, which has been included as
Exhibit (a)(4)
hereto and is incorporated
herein by reference.
The following paragraph is hereby inserted as the second paragraph under the heading
Litigation:
On August 25, 2010, Stephen Bushansky, a purported stockholder of Superior Well
Services, Inc., filed a complaint on behalf of himself and as a putative class action on
behalf of the Companys shareholders, against the Company, each of the Companys officers
and directors, Purchaser and Parent in the United States District Court for the Western
District of Pennsylvania under the caption
Bushansky v. Superior Well Services, Inc., et
al.
(Case No. 2:10-CV-01121-CB). The complaint alleges, among other
things, that the disclosures contained in the Schedule 14D-9 are false and misleading and
contain misrepresentations and omissions of material fact in violation of Section 14(e) of
the Securities Exchange Act of 1934, as amended (the
Exchange Act
), and that
defendants breached their fiduciary duties and violated Sections 14(e) and 20(a) of the
Exchange Act by entering into the Merger Agreement and filing the Schedule 14D-9, and that
Parent and Purchaser aided and abetted those breaches. The complaint does not state how
many Shares are purportedly held by the plaintiff, Stephen Bushansky. The complaint seeks,
among other things, a judgment determining that the action brought by the complaint is
properly maintainable as a class action, a declaration that the defendants have breached
fiduciary duties and violated Section 14(e) of the Exchange Act, an injunction preventing
the transactions contemplated by the Merger Agreement, an award of compensatory damages to
the plaintiff and other members of the class, and award of the plaintiffs costs,
including attorneys and experts fees. The Company views the complaint as lacking merit,
and intends to defend the case vigorously. For the complete terms of the complaint,
holders of the Shares are referred to the complaint, which has been included as
Exhibit (a)(5)
hereto and is incorporated herein by reference.
Item 9.
Exhibits.
Item 9 of the Schedule 14D-9 is hereby amended and supplemented by adding the following
exhibits:
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Exhibit
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No.
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Description
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(a)(4)
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Complaint filed in the Court of Common
Pleas of Indiana County, Pennsylvania, captioned
Richard A. Napierkowski, Jr. v. David E.
Wallace, et al.
, Case No. 11536-CD-2010.
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(a)(5)
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Complaint filed in the United States
District Court for the Western District of
Pennsylvania, captioned
Stephen Bushansky v.
Superior Well Services, Inc. et al.
, Case No.
2:10-CV-01121-CB.
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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 27, 2010
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