Attached files
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EX-2.1 - EX-2.1 - Superior Well Services, INC | l40476exv2w1.htm |
EX-2.2 - EX-2.2 - Superior Well Services, INC | l40476exv2w2.htm |
EX-99.1 - EX-99.1 - Superior Well Services, INC | l40476exv99w1.htm |
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): August 6, 2010
SUPERIOR WELL SERVICES, INC.
(Exact name of Registrant as specified in its charter)
Delaware (State or other jurisdiction of incorporation) |
000-51435 (Commission File Number) |
20-2535684 (IRS Employer Identification Number) |
1380 Rt. 286 East, Suite #121
Indiana, Pennsylvania 15701
(Address of principal executive offices)
Indiana, Pennsylvania 15701
(Address of principal executive offices)
(724) 465-8904
(Registrants telephone number, including area code)
(Registrants telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions:
o | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
o | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
o | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
o | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01 | Entry into Material Definitive Agreement. |
Merger Agreement
On August 6, 2010, Superior Well Services, Inc., a Delaware corporation (the Company),
Nabors Industries Ltd., a Bermuda exempt company (Parent), and Diamond Acquisition
Corp., a Delaware corporation and a wholly-owned subsidiary of Parent (Purchaser),
entered into a definitive Agreement and Plan of Merger (the Merger Agreement). Pursuant
to the Merger Agreement, and upon the terms and subject to the conditions thereof, Parent will
cause Purchaser to, and Purchaser will, commence a cash tender offer (the Offer) to
acquire all of the outstanding shares of common stock, par value $0.01 per share, of the Company
(the Shares), at a purchase price of $22.12 for each Share in cash without interest (the
Offer Price).
The Merger Agreement provides that the Offer will commence within ten business days of the date of
the Merger Agreement. The Offer will remain open for at least 20 business days, subject to
possible extension in accordance with the terms set forth in the Merger Agreement. The Offer is
subject to the satisfaction or waiver of a number of customary conditions set forth in the Merger
Agreement, including that there shall have been validly tendered and not validly withdrawn prior to
the expiration of the Offer, when added to the number of Shares owned by Parent or Purchaser, a
majority of the Shares then outstanding calculated on a fully-diluted basis and the expiration or
termination of applicable waiting periods under the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended.
Pursuant to the Merger Agreement, after consummation of the Offer, and subject to the satisfaction
or waiver of certain conditions set forth in the Merger Agreement, Purchaser shall merge with and
into the Company (the Merger), with the Company surviving as a wholly-owned subsidiary of
Parent. At the effective time of the Merger, each issued and outstanding Share (other than Shares
owned by Parent, Purchaser, the Company, any wholly-owned subsidiary of the Company or Parent, or
stockholders that have perfected their appraisal rights under the Delaware General Corporation Law
(DGCL)) shall be cancelled and converted into the right to receive the Offer Price. If
Purchaser holds 90% or more of the outstanding Shares immediately prior to the Merger, it may
effect the Merger without a meeting of the Companys
shareholders in accordance with the DGCL.
Pursuant to the Merger Agreement, the Company granted Purchaser an irrevocable option (the
Top-Up Option), to purchase the aggregate number of newly-issued Shares that, when added
to the number of Shares owned by Parent and Purchaser at the time of such exercise, constitutes one
share more than ninety percent (90%) of the Shares outstanding immediately after such exercise.
The number of Shares subject to the Top-Up Option is limited to the aggregate number Shares held as
authorized but unissued Shares at the time of exercise, and the Top-Up Option cannot be exercised
if the issuance of Shares requires approval of the Companys stockholders or is prohibited by law.
The per share exercise price of the Top-Up Option is equal to the
Offer Price. The Top-Up Option will
terminate concurrently with the termination of the Merger Agreement.
The Merger Agreement contains representations, warranties and covenants of the parties customary
for transactions of this type. Subject to certain limited exceptions in the Merger Agreement, the
Company has also agreed not to solicit or initiate discussions with third parties regarding other
proposals to acquire the Company and it has agreed to certain restrictions on its ability to
respond to such proposals, subject to fulfillment of certain fiduciary requirements of the
Companys board of directors. The Merger Agreement also contains customary termination provisions
for the Company and Parent and provides that, in connection with the termination of the Merger
Agreement under specified circumstances, the Company may be required to pay Parent a termination
fee equal to $22,500,000 and to reimburse transaction expenses incurred by Parent and Purchaser up
to $5,000,000.
The Merger Agreement provides that immediately prior to the time that Purchaser accepts for
payment all Shares validly tendered in the Offer and not properly withdrawn (the Acceptance
Time), each award of restricted stock outstanding immediately prior to the Acceptance Time will
become fully vested and all restrictions on such awards will lapse, and each such holder may tender
the shares underlying such holders restricted stock award. As a result, all restricted stock not
tendered pursuant to the Offer will be treated in a manner consistent with the other Shares in
connection with the Merger and will be converted into the right to receive $22.12 in cash without
interest.
The Merger Agreement is attached to this report to provide the Companys stockholders with
information regarding the terms of the Merger Agreement and is not intended to modify or supplement
any factual disclosures about the
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Company or Parent in the Companys or Parents public reports filed with the Securities and
Exchange Commission (the SEC). In particular, the Merger Agreement and this summary of
terms are not intended to be, and should not be relied upon as, disclosures regarding any facts or
circumstances relating to the Company or Parent. The representations and warranties have been
negotiated with the principal purpose of (i) establishing the circumstances under which the
Purchaser may have the right not to consummate the Offer, or Parent or the Company may have the
right to terminate the Merger Agreement, and (ii) allocating risk between the parties, rather than
establishing matters as facts. The representations and warranties may also be subject to a
contractual standard of materiality different from that generally applicable under federal
securities laws. The foregoing description of the Offer, Merger, and Merger Agreement does not
purport to be complete and is qualified in its entirety by reference to the Merger Agreement, which
is attached as Exhibit 2.1 to this report and incorporated herein by reference.
Tender and Voting Agreement
In connection with the Offer and the Merger, David E. Wallace, Rhys R. Reese, Jacob B. Linaberger,
David E. Snyder, Mark A. Snyder and certain other significant
stockholders of the Company
(together, the Supporting Stockholders) have entered into a Tender and Voting Agreement
with Parent and Purchaser (the Voting Agreement). Pursuant to the Voting Agreement, the
Supporting Stockholders agreed, among other things, subject to the terms and conditions of the
Voting Agreement, (i) to tender in the Offer (and not withdraw) all Shares owned or subsequently
acquired by them, (ii) not to transfer any of such Shares other than in accordance with the terms
and conditions set forth in the Voting Agreement, (iii) not to take any action in
violation of the Merger Agreement provisions against soliciting or initiating discussions with
third parties regarding other proposals to acquire the Company, (iv) to appoint Parent as their
proxy to vote such Shares in connection with the Merger Agreement and (v) to vote such Shares in
support of the Merger in the event stockholder approval is required to consummate the Merger. The
Supporting Stockholders currently hold approximately 34% of the
outstanding shares and approximately 31% of the outstanding Shares on a
fully diluted basis. The Voting Agreement will terminate upon the termination of the Merger
Agreement.
The foregoing description of the Voting Agreement does not purport to be complete and is qualified
in its entirety by reference to the Voting Agreement, which is attached as Exhibit 2.2 to this
report and incorporated in this report by reference.
Item 8.01. | Other Events |
On
August 9, 2010, the Company and Parent issued a joint press release announcing the execution of
the Merger Agreement, a copy of which is furnished as Exhibit 99.1 to this report and incorporated
herein by reference.
NOTICES
Important Information About the Offer
The Offer described herein has not yet commenced, and this report is neither an offer to purchase
nor a solicitation of an offer to sell securities. At the time the Offer is commenced, Purchaser
will file a tender offer statement on Schedule TO with the SEC. Investors and the Company s
stockholders are strongly advised to read the tender offer statement (including the offer to
purchase, letter of transmittal and related tender offer documents) and the related
solicitation/recommendation statement on Schedule 14D-9 that will be filed by the Company with the
SEC, because they will contain important information. These documents will be available at no
charge on the SECs website at www.sec.gov. The Companys solicitation/recommendation statement on
Schedule 14D-9 will be made available free of charge to all stockholders of the Company at
www.swsi.com or by directing a request to Superior Well Services, Inc. at 1380 Rt. 286 East, Suite
#121, Indiana, PA 15701, Attention: Investor Relations.
Forward-Looking Statements
Certain statements contained in, or incorporated by reference in, this report are forward-looking
statements and are subject to a variety of risks and uncertainties. Additionally, words such as
may, would, will, intend, and other similar expressions are forward-looking statements.
Such forward-looking statements include the ability of the Company, Purchaser and Parent to
complete the transactions contemplated by the Merger Agreement, including the parties ability to
satisfy the conditions set forth in the Merger Agreement and the possibility of any termination of
the Merger Agreement. The forward-looking statements contained in this report are based on the
Companys current expectations, and those made at other times will be based on the Companys
expectations when the statements are made. Some or all of the results anticipated by these
forward-looking statements may not occur. Factors that could cause or contribute to such
differences include, but are not limited to, the expected timetable for completing the proposed
transaction, the risk and uncertainty in connection with a strategic alternative process, the
impact of the
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current
economic environment, operating losses and fluctuations in operating
results and capital
requirements and other risks detailed from time to time
in the Companys SEC reports, including its Annual Report on Form 10-K for the year ended
December 31, 2009. The Company disclaims any intent or obligation to update these forward-looking
statements.
Item 9.01. | Financial Statements and Other Exhibits. |
(d) Exhibits.
Exhibit No. | Description | |
2.1 | Agreement and Plan of Merger, dated August 6, 2010, by and
among Superior Well Services, Inc., Nabors Industries Ltd.,
and Diamond Acquisition Corp. |
|
2.2 | Tender and Voting Agreement, dated August 6, 2010, by and
among Nabors Industries Ltd., Diamond Acquisition Corp., and
the stockholders of Superior Well Services, Inc. party
thereto. |
|
99.1 | Joint
Press Release, issued by Nabors Industries Ltd. and Superior
Well Services, Inc., dated August 9, 2010. |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the
Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
SUPERIOR WELL SERVICES, INC. (Registrant) |
||||
/s/ Thomas W. Stoelk | ||||
Thomas W. Stoelk | ||||
Vice President & Chief Financial Officer | ||||
Dated: August 9, 2010
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EXHIBIT INDEX
Exhibit No. | Description | |
2.1 | Agreement and Plan of Merger, dated August 6, 2010, by and
among Superior Well Services, Inc., Nabors Industries Ltd.,
and Diamond Acquisition Corp. |
|
2.2 | Tender and Voting Agreement, dated August 6, 2010, by and
among Nabors Industries Ltd., Diamond Acquisition Corp., and
the stockholders of Superior Well Services, Inc. party
thereto. |
|
99.1 | Joint
Press Release, issued by Nabors Industries Ltd. and Superior
Well Services, Inc., dated August 9, 2010. |
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