- Amended tender offer statement by Third Party (SC TO-T/A)
30 August 2010 - 8:01PM
Edgar (US Regulatory)
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
Tender Offer Statement Under Section
14(d)(l) or 13(e)(l) of the Securities Exchange Act of 1934
(Amendment No. 2)
SUPERIOR WELL SERVICES, INC.
(Name of Subject Company)
DIAMOND ACQUISITION CORP.,
a wholly owned subsidiary of
NABORS INDUSTRIES LTD.
(Name of Filing Person Offerors)
Common Stock, Par Value $0.01 Per Share
(Title of Class of Securities)
86837X 10 5
(CUSIP Number of Class of Securities)
Nabors Industries Ltd.
Mintflower Place
8 Par-La-Ville Road
Hamilton, HM08
Bermuda
Laura W. Doerre
Vice President and General Counsel
Nabors Corporate Services, Inc.
515 West Greens Road, Suite 1200
Houston, Texas 77067
Telephone: (281) 874-0035
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications on Behalf of Filing Persons)
Copy To:
Charles J. Conroy, Esq.
Milbank, Tweed, Hadley & McCloy LLP
1 Chase Manhattan Plaza
New York, New York 10005
Telephone: (212) 530-5671
Calculation of Filing Fee
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Transaction Valuation*
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Amount of Filing Fee**
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$681,521,712.48
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$48,592.50
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*
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Estimated for purposes of calculating the amount of the filing fee only, in
accordance with Rule 0-1l(d) under the U.S. Securities Exchange Act of 1934, as amended
(the
Exchange Act
). The transaction valuation was calculated by multiplying the
offer price of $22.12 per share by 33,810,204, the number of shares of common stock, par
value $0.01 per share (
Shares
), of Superior Well Services, Inc.
(
Superior
) outstanding on a fully diluted basis as of August 4, 2010, as
represented by Superior in the Agreement and Plan of Merger, dated as of August 6, 2010,
with Nabors Industries Ltd. and Diamond Acquisition Corp., which Shares consist of
30,810,204 Shares issued and outstanding, plus 3,000,000 Shares that would be
issued upon conversion of the 4% Series A Convertible Preferred Stock.
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**
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The filing fee was calculated in accordance with Rule 0-11 of the Exchange Act and
Fee Rate Advisory #4 for fiscal year 2010, issued December 17, 2009, by multiplying the
transaction value of $681,521,712.48 by 0.00007130.
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þ
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Check the box if any part of the fee is offset as provided by Rule 0-11(a)(2) and
identify the filing with which the offsetting fee was previously paid. Identify the
previous filing by registration statement number, or the Form or Schedule and the date of
its filing.
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Amount Previously Paid: $48,592.50
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Filing Party: Diamond Acquisition Corp.
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Form or Registration No.: Schedule TO
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Date Filed: August 11, 2010
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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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Check the appropriate boxes below to designate any transactions to which the statement relates:
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þ
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third-party tender offer subject to Rule 14d-1.
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issuer tender offer subject to Rule 13e-4.
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o
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going-private transaction subject to Rule 13e-3.
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amendment to Schedule 13D under Rule 13d-2.
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Check the following box if the filing is a final amendment reporting the results of the tender
offer:
o
CUSIP No. 86837X 10 5
(1) NAME OF REPORTING PERSON: Nabors Industries Ltd.
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
o
(b)
o
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e)
o
(6) CITIZENSHIP OR PLACE OF ORGANIZATION: Bermuda
(8) SHARED VOTING POWER: 10,453,985
(9) SOLE DISPOSITIVE POWER: 0
(10) SHARED DISPOSITIVE POWER: 10,453,985
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 10,453,985
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 33.9%
(14) TYPE OF REPORTING PERSON: OO (Bermuda exempt company)
Neither the filing of this Amendment No. 2 to the Schedule 13D nor any of its contents
shall be deemed to constitute an admission by the reporting person that it is the beneficial
owner of any of the common stock of Superior Well Services, Inc. referred to herein for
purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended, or for any
other purpose, and such beneficial ownership is expressly disclaimed.
i
CUSIP No. 86837X 10 5
(1) NAME OF REPORTING PERSON: Diamond Acquisition Corp.
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
o
(b)
o
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e)
o
(6) CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware
(8) SHARED VOTING POWER: 10,453,985
(9) SOLE DISPOSITIVE POWER: 0
(10) SHARED DISPOSITIVE POWER: 10,453,985
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 10,453,985
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 33.9%
(14) TYPE OF REPORTING PERSON: CO (Delaware corporation)
Neither the filing of this Amendment No. 2 to the Schedule 13D nor any of its contents
shall be deemed to constitute an admission by the reporting person that it is the beneficial
owner of any of the common stock of Superior Well Services, Inc. referred to herein for
purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended, or for any
other purpose, and such beneficial ownership is expressly disclaimed.
ii
This Amendment No. 2 (this
Amendment
) amends and supplements the Tender Offer
Statement on Schedule TO filed with the Securities and Exchange Commission (the
SEC
) on
August 11, 2010 (the
Initial Schedule TO
) and Amendment No. 1 filed with the SEC on
August 23, 2010 by Nabors Industries Ltd., a Bermuda exempt company (
Nabors
), and Diamond
Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of Nabors
(
Offeror
). This Amendment relates to the offer by Offeror to purchase all of the
outstanding shares of common stock, par value $0.01 per share (the
Shares
), of Superior
Well Services, Inc., a Delaware corporation (
Superior
), for $22.12 per Share, net to the
seller in cash, upon the terms and subject to the conditions set forth in the Offer to Purchase,
dated August 11, 2010 (as amended to date, the
Offer to Purchase
), and in the related
Letter of Transmittal (which, together with any amendments or supplements to the Offer to Purchase
and the Letter of Transmittal, collectively constitute the
Offer
).
Documentation relating to the Offer has been mailed to Superior stockholders and may be
obtained free of charge at the SECs website at www.sec.gov , and may also be obtained at no charge
by directing a request by mail to the information agent for the Offer, Georgeson Inc. at 199 Water
Street, 26
th
Floor, New York, New York 10038 or by calling toll free at (866) 647-8869
or collect at (212) 440-9800 for banks and brokers.
Items 1 through 11.
Pursuant to General Instruction F to Schedule TO, the information contained in the Offer to
Purchase, including all schedules and annexes to the Offer to Purchase, is hereby expressly
incorporated in this Amendment by reference in response to Items 1 through 11 of this Amendment and
is supplemented by the information specifically provided for in this Amendment. The Agreement and
Plan of Merger, dated as of August 6, 2010, by and among Superior, Nabors and Offeror (the
Merger Agreement
), a copy of which is attached as Exhibit (d)(l) to this Amendment, and
the Tender and Voting Agreement, dated as August 6, 2010, by and among Nabors and certain
stockholders of Superior that are signatories thereto, a copy of which is attached as Exhibit
(d)(2) to this Amendment, are each incorporated in this Amendment by reference.
Notwithstanding the foregoing:
(1)
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The following paragraph shall be added on page 23 as the last paragraph under the heading
Background of the Offer; Past Contacts or Negotiations with Superior of the Offer to
Purchase.
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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
Superiors stockholders, against Superior, each of Superiors officers and directors,
Offeror and Nabors in the United States District Court for the Western District of
Pennsylvania under the caption
Bushansky v. Superior Well Services, Inc., et al.
(Civil
Action No. 2:10-CV-01121-CB). The complaint alleges, among other things, that the
disclosures contained in the Schedule 14D-9 filed by Superior with the SEC are false and
misleading and contain misrepresentations and omissions of material fact in violation of
Section 14(e) of 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 Nabors and Offeror 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. Nabors views the complaint as lacking merit, and intends to defend the case
vigorously.
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1
(2)
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The first full paragraph that appears on page 34 of the Offer to Purchase under the heading
Conditions of the Offer is amended and restated in its entirety to read as follows:
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The foregoing conditions are for the sole benefit of Offeror and may be asserted or waived
by Offeror in whole or in part on or before the Expiration Date, subject in each case to
the terms and requirements of the Merger Agreement and the applicable rules and regulations
of the SEC. The failure by Offeror at any time to exercise any of the foregoing rights
shall not be deemed a waiver of any such right, and each such right shall be deemed an
ongoing right which may be asserted on or before the Expiration Date. If Offeror waives a
material condition to the Offer, Offeror will extend the Offer and disseminate additional
tender offer materials to the extent required by applicable law and the applicable
regulations of the SEC. The minimum period during which a tender offer must remain open
following material changes in the terms of the Offer, other than a change in price or a
change in percentage of securities sought, depends upon the facts and circumstances,
including the materiality of the changes. In the SECs view, an offer should remain open
for a minimum of five business days from the date the material change is first published,
sent or given to stockholders, and, if material changes are made with respect to
information that approaches the significance of price and the percentage of securities
sought, a minimum of 10 business days may be required to allow for adequate dissemination
and investor response. With respect to a change in price, a minimum 10-business-day period
from the date of the change is generally required to allow for adequate dissemination to
stockholders. Accordingly, if, prior to the Expiration Date, Offeror decreases the number
of Shares being sought (which would require the consent of Superior), or increases or
decreases (which decrease would require the consent of Superior) the consideration offered
pursuant to the Offer, and if the Offer is scheduled to expire at any time earlier than the
period ending on the 10
th
business day from the date that notice of the increase
or decrease is first published, sent or given to Superior stockholders, Offeror will extend
the Offer at least until the expiration of that period of 10 business days.
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Item 12. Exhibits.
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(a)(1)(A)
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Offer to Purchase, dated August 11, 2010.
(1)
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(a)(1)(B)
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Form of Letter of Transmittal.
(1)
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(a)(1)(C)
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Form of Notice of Guaranteed Delivery.
(1)
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(a)(1)(D)
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Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.
(1)
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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.
(1)
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(a)(1)(F)
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IRS Form W-9.
(1)
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(a)(5)(A)
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Press Release Issued by Nabors and Superior, dated August 9, 2010, announcing the
execution of the Merger Agreement by and among Nabors, Offeror and Superior (incorporated by
reference to the Form 8-K filed by Nabors on August 9, 2010).
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(d)(1)
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Agreement and Plan of Merger, dated as of August 6, 2010, by and among Nabors, Offeror and
Superior (incorporated by reference to the Form 8-K filed by Nabors on August 9, 2010).
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(d)(2)
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Tender and Voting Agreement, by and among Nabors, Offeror and certain stockholder
signatories thereto, dated as of August 6, 2010 (incorporated by reference to the Form 8-K
filed by Nabors on August 9, 2010).
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(1)
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Incorporated by reference from the Initial Schedule TO, filed by Nabors and Offeror with
the SEC on August 11, 2010.
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Item 13. Information Required by Schedule 13E-3.
Not applicable.
3
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that the information
set forth in this Schedule TO is true, complete and correct.
Dated: August 27, 2010
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NABORS INDUSTRIES LTD.
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By:
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/s/ Mark D. Andrews
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Name:
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Mark D. Andrews
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Title:
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Corporate Secretary
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DIAMOND ACQUISITION CORP.
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By:
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/s/ Jose S. Cadena
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Name:
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Jose S. Cadena
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Title:
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Vice President
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4
EXHIBIT INDEX
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(a)(1)(A)
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Offer to Purchase, dated August 11, 2010.
(1)
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(a)(1)(B)
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Form of Letter of Transmittal.
(1)
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(a)(1)(C)
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Form of Notice of Guaranteed Delivery.
(1)
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(a)(1)(D)
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Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.
(1)
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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.
(1)
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(a)(1)(F)
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IRS Form W-9.
(1)
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(a)(5)(A)
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Press Release Issued by Nabors and Superior, dated August 9, 2010, announcing the
execution of the Merger Agreement by and among Nabors, Offeror and Superior (incorporated by
reference to the Form 8-K filed by Nabors on August 9, 2010).
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(d)(1)
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Agreement and Plan of Merger, dated as of August 6, 2010, by and among Nabors, Offeror and
Superior (incorporated by reference to the Form 8-K filed by Nabors on August 9, 2010).
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(d)(2)
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Tender and Voting Agreement, by and among Nabors, Offeror and certain stockholder
signatories thereto, dated as of August 6, 2010 (incorporated by reference to the Form 8-K
filed by Nabors on August 9, 2010).
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(1)
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Incorporated by reference from the Initial Schedule TO, filed by Nabors and Offeror with
the SEC on August 11, 2010.
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5
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