TENDER AND VOTING AGREEMENT
Exhibit 2.2
This TENDER AND VOTING AGREEMENT (this “Agreement”) dated August 6, 2010, is entered
into between Xxxxxx Industries Ltd., a Bermuda exempt company (“Parent”), Diamond
Acquisition Corp., a Delaware corporation and direct wholly owned subsidiary of Parent
(“Sub”), and the undersigned stockholders of the Company (each a “Stockholder”),
with respect to (a) the shares of common stock, par value $0.01 per share (the “Shares”),
of Superior Well Services, Inc., a Delaware corporation (the “Company”), (b) all securities
exchangeable, exercisable or convertible into Shares and (c) any securities issued or exchanged
with respect to such Shares upon any recapitalization, reclassification, merger, consolidation,
spin-off, partial or complete liquidation, stock dividend, split-up or combination of the
securities of the Company or upon any other change in the Company’s capital structure, in each case
whether now owned or hereafter acquired by the Stockholder (collectively, the
“Securities”).
W I T N E S S E T H:
WHEREAS, Parent, Sub and the Company have entered into an Agreement and Plan of Merger dated
as of the date hereof (as the same may be amended or supplemented, other than to lower the price to
be paid in the Offer or Merger, the “Merger Agreement”) pursuant to which Sub has agreed to
make a cash tender offer as described therein and thereafter merge with and into the Company (the
“Merger”) with the result that the Company becomes a wholly owned subsidiary of Parent;
WHEREAS, as of the date hereof, Stockholder is the record or beneficial owner and has the
power to dispose of the Securities set forth on Schedule I hereto and has the power to
vote, or cause to be voted, the Shares set forth thereon, except as otherwise set forth on
Schedule I;
WHEREAS, Parent and Sub desire to enter into this Agreement in connection with their efforts
to consummate the acquisition of the Company; and
WHEREAS, capitalized terms used in this Agreement and not defined have the meaning given to
such terms in the Merger Agreement.
NOW, THEREFORE, in contemplation of the foregoing and in consideration of the mutual
agreements, covenants, representations and warranties contained herein and intending to be legally
bound hereby, the parties hereto agree as follows:
ARTICLE I
CERTAIN COVENANTS
1.1 Lock—Up. Subject to Section 1.5, except as contemplated by the Merger
Agreement, Stockholder hereby covenants and agrees that at any time prior to the Termination Date,
Stockholder will not (a) directly or indirectly, sell, transfer, assign, pledge, hypothecate,
tender, encumber or otherwise dispose of or limit its right to vote in any manner any of the
Securities, or agree to do
any of the foregoing, or (b) take any action which would have the effect of preventing or
disabling Stockholder from performing its obligations under this Agreement.
Notwithstanding the foregoing, Stockholder may transfer any or all of the Securities as follows: (i) in the case of a
Stockholder that is an entity, to any subsidiary, partner or member of Stockholder, and (ii) in the
case of an individual Stockholder, to Stockholder’s spouse, ancestors, descendants or any trust for
any of their benefits or to a charitable trust; provided, however, that in any such
case, prior to and as a condition to the effectiveness of such transfer, (A) each person to which
any of such Securities or any interest in any of such Securities is or may be transferred (1) shall
have executed and delivered to Parent and Sub a counterpart to this Agreement pursuant to which
such person shall be bound by all of the terms and provisions of this Agreement, and (2) shall have
agreed in writing with Parent and Sub to hold such Securities or interest in such Securities
subject to all of the terms and provisions of this Agreement, and (B) this Agreement shall be the
legal, valid and binding agreement of such person, enforceable against such person in accordance
with its terms.
1.2 No Solicitation. Prior to the Termination Date, the Stockholder shall not,
directly or indirectly, take any action that the Company is prohibited from taking pursuant to
Section 6.5 of the Merger Agreement.
1.3 Certain Events. This Agreement and the obligations hereunder will attach to the
Securities and will be binding upon any person to which legal or beneficial ownership of any or all
of the Securities passes, whether by operation of Law or otherwise, including without limitation,
Stockholder’s successors or assigns. This Agreement and the obligations hereunder will also attach
to any additional Shares or other Securities of the Company issued to or acquired by Stockholder.
1.4 Grant of Proxy; Voting Agreement.
(a) Stockholder has revoked or terminated any proxies, voting agreements or similar
arrangements previously given or entered into with respect to the Securities and, during the period
prior to the Termination Date, hereby irrevocably appoints officers of Parent as proxy for
Stockholder to vote the Securities for Stockholder and in Stockholder’s name, place and stead, at
any annual, special or other meeting or action of the stockholders of the Company, as applicable,
or at any adjournment thereof or pursuant to any consent of the stockholders of the Company, in
lieu of a meeting or otherwise, whether before or after the Acceptance Time, (i) for the adoption
of the Merger Agreement and the approval of Merger, and (ii) against any proposal regarding any
other Takeover Proposal. Parent hereby acknowledges that the proxy granted hereby shall not be
effective for any other purpose. The parties acknowledge and agree that neither Parent, nor
Parent’s successors, assigns, subsidiaries, divisions, employees, officers, directors,
stockholders, agents and affiliates shall owe any duty to, whether in law or otherwise, or incur
any liability of any kind whatsoever, including without limitation, with respect to any and all
claims, losses, demands, causes of action, costs, expenses (including reasonable attorney’s
fees), and compensation of any kind or nature whatsoever to Stockholder in connection with or
as a result of any voting by officers of Parent of the Securities subject to the irrevocable proxy
hereby granted to Parent at any annual, special or other meeting or action or the execution of any
consent of the stockholders of the Company for the purpose set forth herein.
(b) This irrevocable proxy shall not be terminated by any act of Stockholder or by operation
of law, whether by the death or incapacity of Stockholder or by the occurrence of
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any other event or events (including, without limiting the foregoing, the termination of any trust or estate for
which Stockholder is acting as a fiduciary or fiduciaries or the dissolution or liquidation of any
corporation or partnership). If prior to the Termination Date, Stockholder should die or become
incapacitated, or if any trust or estate holding the Securities should be terminated, or if any
corporation or partnership holding the Securities should be dissolved or liquidated, or if any
other such similar event or events shall occur before the Termination Date, certificates
representing the Securities shall be delivered by or on behalf of Stockholder in accordance with
the terms and conditions of the Merger Agreement and this Agreement, and actions taken by Parent
hereunder shall be as valid as if such death, incapacity, termination, dissolution, liquidation or
other similar event or events had not occurred, regardless of whether or not Parent has received
notice of such death, incapacity, termination, dissolution, liquidation or other event.
1.5 Tender of Securities. Stockholder agrees, in exchange for the consideration
described in the Merger Agreement, to (a) tender any Shares owned of record by Stockholder or for
which Stockholder has sole dispositive power prior to the Offer Commencement Date to Sub in the
Offer not later than five (5) Business Days following the Offer Commencement Date, and (b) tender
any Shares acquired by Stockholder after the Offer Commencement Date to Sub in the Offer not later
than the earlier of (i) five (5) Business Days following the acquisition of such Shares or (ii) the
Acceptance Time, and Stockholder shall not withdraw any Shares so tendered under clauses (a) and
(b) above unless the Offer is terminated or this Agreement shall have been terminated in accordance
with its terms; provided, however, that Stockholder shall not be required, for
purposes of this Agreement, to tender any Shares granted to such Stockholder under a Company
Benefit Plan which are unvested and subject to any risk of forfeiture, and Stockholder shall not
have any obligation under this Section 1.5 to tender such Stockholder’s Shares into the
Offer if that tender could cause such Stockholder to incur liability under Section 16(b) of the
Exchange Act.
1.6 Reliance By Parent. The Stockholder understands and acknowledges that Parent is
entering into the Merger Agreement in reliance upon the execution and delivery of this Agreement by
such Stockholder.
1.7 Public Announcement. Stockholder shall consult with Parent before issuing any
press releases or otherwise making any public statements with respect to the transactions
contemplated herein and shall not issue any such press release or make any such public statement
without the approval of Parent, except as may be required by Law, including any filings with the
SEC pursuant to the Exchange Act. This Section 1.7 shall terminate and be null and void upon the earlier of (a)
the Termination Date and (b) consummation of the Merger.
1.8 Disclosure. Stockholder hereby authorizes Parent and Sub to publish and disclose
in any announcement or disclosure required by the SEC, the NYSE or NASDAQ or any other national
securities exchange and in the Offer Documents and, if necessary, the Proxy Statement (including
all documents and schedules filed with the SEC in connection with either of the foregoing),
Stockholder’s identity and ownership of the Securities and the nature of Stockholder’s commitments,
arrangements and understandings under this Agreement. Parent and Sub hereby authorize Stockholder
to make such disclosure or filings as may be required by the SEC, the NYSE, the NASDAQ or any other
national securities exchange.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
Stockholder hereby represents and warrants to Parent and Sub, as of the date hereof and as of
the date Sub purchases Shares pursuant to the Offer, that:
2.1 Ownership. As of the date hereof, Stockholder holds of record or beneficially the
Securities set forth on Schedule I, in each case, except as set forth on Schedule
I, free and clear of all liabilities, claims, liens, options, proxies, charges, participations
and encumbrances of any kind or character whatsoever, other than those arising under the securities
laws or under the Company’s governance documents (collectively, “Liens”). At the time Sub
purchases Shares pursuant to the Offer, Stockholder will transfer and convey, or cause to be
transferred or conveyed, to Sub or its designee good and marketable title to the Shares included in
the Securities, free and clear of all Liens created by or arising through Stockholder.
2.2 Authorization. Stockholder has all requisite power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby and has sole voting
power and sole power of disposition, with respect to the Securities with no restrictions on its
voting rights or rights of disposition pertaining thereto, except as set forth in the Securities or
pursuant to applicable community property Laws. Stockholder has duly executed and delivered this
Agreement and this Agreement is a legal, valid and binding agreement of Stockholder, enforceable
against Stockholder in accordance with its terms, except to the extent enforceability may be
limited by the effect of applicable bankruptcy, reorganization, insolvency, moratorium or other
Laws affecting the enforcement of creditors’ rights generally and the effect of general principles
of equity, regardless of whether such enforceability is considered in a proceeding at Law or in
equity. If the Stockholder is married and the Securities constitute community property, this
Agreement has been duly authorized, executed and delivered by the Stockholder’s
spouse, and this Agreement is a legal, valid and binding agreement of the Stockholder’s
spouse, enforceable against the Stockholder’s spouse in accordance with its terms, except to the
extent enforceability may be limited by the effect of applicable bankruptcy, reorganization,
insolvency, moratorium or other Laws affecting the enforcement of creditors’ rights generally and
the effect of general principles of equity, regardless of whether such enforceability is considered
in a proceeding at Law or in equity.
2.3 No Violation. Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will (a) require Stockholder to file or
register with, or obtain any permit, authorization, consent or approval of, any governmental
agency, authority, administrative or regulatory body, court or other tribunal, foreign or domestic,
or any other entity other than filings with the SEC pursuant to the Exchange Act, or (b) violate,
or cause a breach of or default under, or conflict with any contract, agreement or understanding,
any Law binding upon Stockholder, except for such violations, breaches, defaults or conflicts which
are not, individually or in the aggregate, reasonably likely to have an adverse effect on
Stockholder’s ability to satisfy its obligations under this Agreement. As of the date hereof, no
proceedings are pending which, if adversely determined, will have an adverse effect on
Stockholder’s ability to vote or dispose of any of the Securities.
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2.4 Stockholder Has Adequate Information. Stockholder is a sophisticated seller with
respect to the Securities and has adequate information concerning the business and financial
condition of the Company to make an informed decision regarding the sale of the Securities and has
independently and without reliance upon either Sub or Parent and based on such information as
Stockholder has deemed appropriate, made its own analysis and decision to enter into this
Agreement. Stockholder acknowledges that neither Sub nor Parent has made and neither makes any
representation or warranty, whether express or implied, of any kind or character except as
expressly set forth in this Agreement. Stockholder acknowledges that the agreements contained
herein with respect to the Securities held by Stockholder are irrevocable (prior to the Termination
Date), and that Stockholder shall have no recourse to the Securities, Parent or Sub, except with
respect to breaches of representations, warranties, covenants and agreements expressly set forth in
this Agreement.
2.5 No Setoff. Stockholder has no liability or obligation related to or in connection
with the Securities other than the obligations to Parent and Sub as set forth in this Agreement.
2.6 No Amounts Payable to Stockholder. Except as disclosed in the Merger Agreement,
there are no amounts due or payable by the Company or any of its Subsidiaries to Stockholder or any
of its affiliates or associates in connection with the transactions contemplated by the Merger
Agreement or this Agreement or otherwise (other than any payments required under the Merger
Agreement solely in exchange for equity securities of the Company or payments, if any, to be made
pursuant to Company Benefit Plans disclosed in the Company Disclosure Letter).
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PARENT AND SUB
Parent and Sub hereby represent and warrant to Stockholder, as of the date hereof that:
3.1 Authorization. Parent and Sub have all requisite corporate power and authority to
execute and deliver this Agreement and to consummate the transactions contemplated hereby. Parent
and Sub have duly executed and delivered this Agreement and this Agreement is a legal, valid and
binding agreement of each of Parent and Sub, enforceable against each of Parent and Sub in
accordance with its terms, except to the extent enforceability may be limited by the effect of
applicable bankruptcy, reorganization, insolvency, moratorium or other Laws affecting the
enforcement of creditors’ rights generally and the effect of general principles of equity,
regardless of whether such enforceability is considered in a proceeding at Law or in equity.
3.2 No Violation. Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will (a) require Parent or Sub to file or
register with, or obtain any permit, authorization, consent or approval of, any governmental
agency, authority, administrative or regulatory body, court or other tribunal, foreign or domestic,
or any other entity other than filings with the SEC pursuant to the Exchange Act or pursuant to the
HSR Act, or (b) violate, cause a breach of or default under, or conflict with any contract,
agreement or understanding, any Law binding upon Parent or Sub, except for such violations,
breaches, defaults or conflicts which are not, individually or in the aggregate, reasonably likely
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to have an adverse effect on Parent’s or Sub’s ability to satisfy its obligations under this
Agreement. As of the date hereof, no proceedings are pending which, if adversely determined, will
have an adverse effect on Parent’s or Sub’s ability to vote or dispose of any of the Securities.
ARTICLE IV
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The respective representations and warranties of Stockholder, Parent and Sub contained herein
shall not be deemed waived or otherwise affected by any investigation made by the other party
hereto. All representations and warranties shall terminate on the Termination Date.
ARTICLE V
SPECIFIC PERFORMANCE
Stockholder acknowledges that Sub and Parent will be irreparably harmed and that there will be
no adequate remedy at law for a violation of any of the covenants or agreements of Stockholder
which are contained in this Agreement. It is accordingly agreed that, in addition to any other
remedies which may be available to Sub and Parent upon the breach by Stockholder of such covenants
and agreements, Sub and Parent shall have the right to obtain injunctive relief to restrain any
breach or threatened breach of such covenants or agreements or otherwise to obtain specific
performance of any of such covenants or agreements.
ARTICLE VI
MISCELLANEOUS
6.1 Termination Date. This Agreement and all obligations hereunder shall terminate
upon the earlier of (a) the Effective Time, (b) the Walk-Away Date, (c) the date of any
modification, waiver or amendment to the Merger Agreement in a manner that reduces the Offer Price
and (d) the termination of the Merger Agreement pursuant to Section 8.1 thereof (the earliest of
(a), (b), (c) and (d), the “Termination Date”). Upon termination of this Agreement, no
party shall have any further obligations or liabilities under this Agreement; provided,
however, that (i) nothing set forth in this Section 6.1 shall relieve any party
from liability for any willful breach of this Agreement prior to termination hereof, and (ii) the
provisions of this Article VI shall survive any termination of this Agreement.
6.2 Capacity as a Stockholder; Fiduciary Duties. Notwithstanding anything in this
Agreement to the contrary: (a) the Stockholder makes no agreement or understanding herein in any
capacity other than in the Stockholder’s capacity as a record holder and beneficial owner of
Securities, and makes no agreement or understanding in such Stockholder’s capacity as a director,
officer or employee of the Company or any of its Subsidiaries or in such Stockholder’s capacity as
a trustee or fiduciary of any employee benefit plan or trust, and (b) nothing herein will be
construed to limit or affect any action or inaction by the Stockholder serving on the Company Board
of Directors or on the board of directors of any Company Subsidiary or as an
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officer or fiduciary of the Company, any Company Subsidiary or any employee benefit plan or trust, acting in such
person’s capacity as a director, officer, trustee and/or fiduciary.
6.3 Appraisal Rights. Each Stockholder hereby waives, and agrees not to exercise or
assert, any appraisal rights under Section 262 of the DGCL in connection with the Merger.
6.4 Additional Shares; Adjustments. If, after the date hereof, the Stockholder
acquires beneficial or record ownership of any additional Shares (any such shares, “Additional
Shares”), including, without limitation, upon exercise of any option, warrant or right to acquire
shares of capital stock of the Company or any other Equity Right of the Company, or through any
stock dividend or stock split, the provisions
of this Agreement applicable to the Shares shall thereafter be applicable to such Additional
Shares as if such Additional Shares had been Shares as of the date hereof. The provisions of the
immediately preceding sentence shall be effective with respect to Additional Shares without action
by any person or entity immediately upon the acquisition by the Stockholder of beneficial ownership
of such Additional Shares.
6.5 Expenses. Each of the parties hereto shall pay its own expenses incurred in
connection with this Agreement. Each of the parties hereto warrants and covenants to the others
that it will bear all claims for brokerage fees attributable to action taken by it.
6.6 Binding Effect. This Agreement shall be binding upon and inure to the benefit of
and be enforceable by the parties hereto and their respective representatives and permitted
successors and assigns.
6.7 Entire Agreement; No Third Party Beneficiaries. This Agreement contains the
entire understanding of the parties and supersedes all prior agreements and understandings between
the parties with respect to its subject matter. This Agreement may be amended only by a written
instrument duly executed by the parties hereto. This Agreement is not intended to and shall not
confer upon any Person other than the parties hereto any rights or remedies hereunder.
6.8 Headings. The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this Agreement.
6.9 Assignment. Without limitation to Section 1.1, this Agreement shall be
binding upon and inure to the benefit of the parties named herein and their respective successors
and permitted assigns. No party may assign either this Agreement or any of its rights, interests,
or obligations hereunder without the prior written approval of the other parties; provided,
however, that each of Parent and Sub may freely assign its rights to another direct or
indirect wholly owned subsidiary of Parent or Sub without such prior written approval but no such
assignment shall relieve Parent or Sub of any of its obligations hereunder or require additional
approvals of third parties. Any purported assignment requiring consent without such consent shall
be void.
6.10 Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall be an original, but each of which together shall constitute one and the same
Agreement.
6.11 Notices. Any notice or other communication required or permitted hereunder shall be in writing and
shall be deemed given when delivered in person, by overnight courier, by
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facsimile transmission (with receipt confirmed by telephone or by automatic transmission report), or five (5) Business
Days after being sent by registered or certified mail (postage prepaid, return receipt requested),
as follows:
(a) if to Parent or Sub, to:
Xxxxxx Industries Ltd.
Xxxxxxxxxx Xxxxx
0 Xxx-Xx-Xxxxx Xxxx
Xxxxxxxx, XX00
Xxxxxxx
Attn: General Counsel
Facsimile: (000) 000-0000
Xxxxxxxxxx Xxxxx
0 Xxx-Xx-Xxxxx Xxxx
Xxxxxxxx, XX00
Xxxxxxx
Attn: General Counsel
Facsimile: (000) 000-0000
with a copy to:
Milbank, Tweed, Xxxxxx & XxXxxx LLP
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
(b) If to Stockholder, to the addresses indicated on Schedule I hereto.
Any party may by notice given in accordance with this Section 6.11 to the other parties to
designate updated information for notices hereunder.
6.12 Governing Law. This Agreement shall be governed by and construed and enforced in
accordance with the Laws of the State of Delaware, without regard to its principles of conflicts of
Laws.
6.13 Severability. If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any Law or public policy, all other terms and provisions
of this Agreement shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any manner materially
adverse to any Party. Notwithstanding the foregoing, upon such determination that any term or
other provision is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original intent of the parties
herto as closely as possible in an acceptable manner in order that the transactions contemplated
hereby are consummated as originally contemplated to the greatest extent possible.
6.14 Further Assurances. From time to time, at Parent’s request and without further consideration, Stockholder shall
execute and deliver to Parent such documents and take such action as Parent may reasonably request
in order to consummate more effectively the transactions contemplated hereby and to vest in Parent
good, valid and marketable title to the Securities, including, but not limited to, using its best
efforts to cause the appropriate transfer agent or registrar to transfer of record the Securities.
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6.15 Remedies Not Exclusive. All rights, powers and remedies provided under this
Agreement or otherwise available in respect hereof at law or in equity will be cumulative and not
alternative, and the exercise of any thereof by either party will not preclude the simultaneous or
later exercise of any other such right, power or remedy by such party.
6.16 Waiver of Jury Trial. EACH PARTY HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
6.17 No Agreement Until Executed. Irrespective of negotiations among the parties or
the exchanging of drafts of this Agreement, this Agreement shall not constitute or be deemed to
evidence a contract, agreement, arrangement or understanding between the parties hereto unless and
until (a) the Company Board of Directors has adopted and approved, for purposes of any applicable
anti-takeover laws and regulations, and any applicable provision of the Company’s certificate of
incorporation, the possible acquisition of the Shares by Parent and Sub pursuant to the Merger
Agreement, (b) the Merger Agreement is executed by all parties thereto and (c) this Agreement is
executed by all parties hereto.
[The rest of this page has intentionally been left blank]
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IN WITNESS WHEREOF, Parent, Sub and Stockholder have caused this Agreement to be duly executed
as of the day and year first above written.
| XXXXXX INDUSTRIES LTD. |
||||
| By: | ||||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Corporate Secretary | |||
| DIAMOND ACQUISITION CORP. |
||||
| By: | ||||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Vice President | |||
[Signature page to Tender and Voting Agreement]
| STOCKHOLDER: |
||||
| Xxxx X. Xxxxxx | ||||
| Xxxxxxx X. Xxxxxx | ||||
[Signature page to Tender and Voting Agreement]
| STOCKHOLDER: |
||||
| Xxxxxx X. Xxxxxx | ||||
[Signature page to Tender and Voting Agreement]
| STOCKHOLDER: XXXXXX ASSOCIATED COMPANIES, INC. |
||||
| By: | ||||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | President | |||
[Signature page to Tender and Voting Agreement]
| STOCKHOLDER: XXXXXX X. XXXXXX 2008 GRANTOR RETAINED ANNUITY TRUST |
||||
| By: | ||||
| Name: | Xxxxxx Xxxxxx, Trustee | |||
| By: | ||||
| Name: | Xxxxxxxxx Xxxxxx, Trustee | |||
[Signature page to Tender and Voting Agreement]
| STOCKHOLDER: |
|||||
| Xxxxx X. Xxxxxx | |||||
[Signature page to Tender and Voting Agreement]
STOCKHOLDER: XXXXXX X. XXXXXX 2010 GRANTOR RETAINED ANNUITY TRUST |
||||
| By: | ||||
| Name: | Xxxxxx Xxxxxx, Trustee | |||
| By: | ||||
| Name: | Xxxxxxxxx Xxxxxx, Trustee | |||
[Signature page to Tender and Voting Agreement]
| STOCKHOLDER: BUFFALO VALLEY REAL ESTATE CO. |
||||
| By: | ||||
| Name: | ||||
| Title: | President | |||
| STOCKHOLDER: XXXXXX INDUSTRIES, INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | President | |||
[Signature page to Tender and Voting Agreement]
STOCKHOLDER: X. X. XXXXXX, XX. 2010 GRANTOR RETAINED ANNUITY TRUST |
||||
| By: | ||||
| Name: | Xxxxxx X. Xxxxxx, Trustee | |||
| By: | ||||
| Name: | Xxxxxxx X. Xxxxxx, Trustee | |||
[Signature page to Tender and Voting Agreement]
STOCKHOLDER: XXXXX X. AND XXXXXXXXX X. XXXXXX IRREVOCABLE SEPARATE SHARES GREAT-GRANDCHILDREN TRUST |
||||
| By: | ||||
| Name: | Xxxxx X. Xxxxxx, Trustee | |||
| By: | ||||
| Name: | Xxxx X. Xxxxxx, Trustee | |||
| By: | ||||
| Name: | Xxxxxx X. Xxxxxx, Trustee | |||
[Signature page to Tender and Voting Agreement]
STOCKHOLDER: XXXXXX X. XXXXXX 2008-A GRANTOR RETAINED ANNUITY TRUST |
||||
| By: | ||||
| Name: | Xxxx X. Xxxxxx, Trustee | |||
[Signature page to Tender and Voting Agreement]
STOCKHOLDER: XXXXXX X. XXXXXX 2010 GRANTOR RETAINED ANNUITY TRUST |
||||
| By: | ||||
| Name: | Xxxx X. Xxxxxx, Trustee | |||
[Signature page to Tender and Voting Agreement]
Schedule I
To the Tender and Voting Agreement
| 1. | Securities held by Stockholder: |
| Restricted Shares under | ||||||||
| stock incentive plan | ||||||||
| Common Stock | Vested | Unvested | ||||||
1,058,067
|
18,300 | 32,950 | ||||||
| 2. | Address to which notices or other communications are to be sent in accordance with Section 6.11 of this Agreement: |
| Stockholder: | Xxxxx X. Xxxxxxx | |||
| 0000 Xx. 000 Xxxx, Xxxxx 000 | ||||
| Xxxxxxx, XX 00000 | ||||
| Telephone: 000-000-0000 | ||||
| Facsimile: 724-465-8907 |
Schedule I
To the Tender and Voting Agreement
| 1. | Securities held by Stockholder: |
| Restricted Shares under | ||||||||
| stock incentive plan | ||||||||
| Common Stock | Vested | Unvested | ||||||
936,037
|
10,437 | 23,300 | ||||||
| 2. | Address to which notices or other communications are to be sent in accordance with Section 6.11 of this Agreement: |
| Stockholder: | Xxxxx X. Xxxxxxxxxx | |||
| 0000 Xx. 000 Xxxx, Xxxxx 000 | ||||
| Xxxxxxx, XX 00000 | ||||
| Telephone: 000-000-0000 | ||||
| Facsimile: 724-465-8907 |
Schedule I
To the Tender and Voting Agreement
| 1. | Securities held by Stockholder: |
| Restricted Shares under | |||||||||||
| Common Stock | stock incentive plan | ||||||||||
| Vested | Unvested | ||||||||||
901,500
|
13,200 | 23,300 | |||||||||
| 2. | Address to which notices or other communications are to be sent in accordance with Section 6.11 of this Agreement: |
| Stockholder: | Rhys X. Xxxxx | |||
| 0000 Xx. 000 Xxxx, Xxxxx 000 | ||||
| Xxxxxxx, XX 00000 | ||||
| Telephone: 000-000-0000 | ||||
| Facsimile: 724-465-8907 |
Schedule I
To the Tender and Voting Agreement
| 1. | Securities held by Stockholder: |
| Restricted Shares | ||||||||||||
| Stockholder Name | Common Stock | Vested | Unvested | |||||||||
X. X. Xxxxxx, Xx.(1) |
1,456,708 | |||||||||||
Xxxxxx X. Xxxxxx(2) |
1,419,052 | |||||||||||
Xxxxxxx X. Xxxxxx(3) |
2,591,056 | |||||||||||
Xxxxx X. Xxxxxx(4) |
2,706,910 | 7,950 | 12,050 | |||||||||
Xxxx X. Xxxxxx(5) |
3,510,150 | 7,950 | 12,050 | |||||||||
Xxxxxx X. Xxxxxx(6) |
1,475,708 | |||||||||||
Xxxxxx Associated Companies, Inc.(7) |
1,332,827 | |||||||||||
Xxxxxx X. Xxxxxx 2008 Grantor Retained Annuity Trust (8) |
837,841 | |||||||||||
Xxxxx X. Xxxxxx |
259,546 | |||||||||||
Xxxxxx X. Xxxxxx 2010 Grantor Retained Annuity Trust (8) |
404,163 | |||||||||||
Buffalo Valley Real Estate Co. (9) |
119,881 | |||||||||||
Xxxxxx Industries, Inc. (10) |
1,332,827 | |||||||||||
X. X. Xxxxxx, Xx. 2010 Grantor Retained Annuity Trust (11) |
86,225 | |||||||||||
Xxxxx X. and Xxxxxxxxx X. Xxxxxx Irrevocable Separate
Shares Great-Grandchildren
Trust (12) |
22,000 | |||||||||||
| Restricted Shares | ||||||||||||
| Stockholder Name | Common Stock | Vested | Unvested | |||||||||
Xxxxxx X. Xxxxxx 2008-A
Grantor Retained Annuity Trust (13) |
703,933 | |||||||||||
Xxxxxx X. Xxxxxx 2010 Grantor Retained Annuity Trust (13) |
241,825 | |||||||||||
Xxxxxx X. Xxxxxx (14) |
1,239,452 | |||||||||||
Xxxxxxx X. Xxxxxx (15) |
80,449 | |||||||||||
| (1) | Xx. X. X. Xxxxxx, Xx. directly owns 4,000 shares and indirectly owns 1,332,827 shares through Xxxxxx Associated Companies, Inc. Xx. X. X. Xxxxxx, Xx. is a shareholder of Xxxxxx Associated Companies, Inc., serves as its Executive Vice President and is a member of its board of directors. As such, Xx. X. X. Xxxxxx, Xx. may be deemed to have voting and dispositive power over the shares indirectly owned by Xxxxxx Associated Companies, Inc., a wholly-owned subsidiary of Xxxxxx Industries, Inc. In addition, of the shares indicated as beneficially owned by Xx. X. X. Xxxxxx, Xx., 119,881 shares are indirectly owned by him through Buffalo Valley Real Estate Co., which directly owns the 119,881 shares. Xx. X. X. Xxxxxx, Xx. is an executive officer and director of Buffalo Valley Real Estate Co., and, as such, he may be deemed to have voting and dispositive power over the shares directly owned by Buffalo Valley Real Estate Co. | |
| (2) | Of the shares indicated as beneficially owned by Xx. Xxxxxx X. Xxxxxx, no shares are directly owned by him and 1,332,827 shares are indirectly owned by him through Xxxxxx Associated Companies, Inc., which indirectly owns the shares through Xxxxxx Industries, Inc., its wholly owned subsidiary. Xx. Xxxxxx X. Xxxxxx is a shareholder of Xxxxxx Associated Companies, Inc., serves as its Vice President and is a member of its board of directors. As such, Xx. Xxxxxx X. Xxxxxx may be deemed to have voting and dispositive power over the shares indirectly owned by Xxxxxx Associated Companies, Inc. In addition, of the shares indicated as beneficially owned by Xx. Xxxxxx X. Xxxxxx, 86,225 shares are indirectly owned by him through the X. X. Xxxxxx, Xx. 2010 Grantor Retained Annuity Trust, which directly owns the shares. Xx. Xxxxxx X. Xxxxxx is a trustee and contingent beneficiary of the X. X. Xxxxxx, Xx. 2010 Grantor Retained Annuity Trust, and, as such, he may be deemed to have voting and dispositive power over the shares directly owned by the X. X. Xxxxxx, Xx. 2010 Grantor Retained Annuity Trust. | |
| (3) | Of the shares indicated as beneficially owned by Xx. Xxxxxxx X. Xxxxxx, 1,172,004 shares are directly owned by him and 1,332,827 shares are indirectly owned by him through Xxxxxx Associated Companies, Inc., which indirectly owns the shares through Xxxxxx Industries, Inc., its wholly owned subsidiary. Xx. Xxxxxxx X. Xxxxxx is a shareholder of Xxxxxx Associated Companies, Inc., serves as its Vice President and is a member of its board of directors. As such, Xx. Xxxxxxx X. Xxxxxx may be deemed to have voting and dispositive power over the shares indirectly owned by Xxxxxx Associated Companies, Inc. In addition, of the shares indicated as beneficially |
| owned by Xx. Xxxxxxx X. Xxxxxx, 86,225 shares are indirectly owned by him through the X. X. Xxxxxx, Xx. 2010 Grantor Retained Annuity Trust, which directly owns the shares. Xx. Xxxxxxx X. Xxxxxx is a trustee and contingent beneficiary of the X. X. Xxxxxx, Xx. 2010 Grantor Retained Annuity Trust, and, as such, he may be deemed to have voting and dispositive power over the shares directly owned by the X. X. Xxxxxx, Xx. 2010 Grantor Retained Annuity Trust. | ||
| (4) | Of the shares indicated as beneficially owned by Xxxxx X. Xxxxxx, 1,244,452 shares are directly owned by him, excluding 20,000 restricted shares issued to him pursuant to our stock incentive plan of which 7,950 shares are vested and separate reflected in the table above, and 1,332,827 shares are indirectly owned by him through Xxxxxx Associated Companies, Inc., which indirectly owns the shares through Xxxxxx Industries, Inc., its wholly owned subsidiary. Xx. Xxxxx X. Xxxxxx is a shareholder of Xxxxxx Associated Companies, Inc., serves as its President and Treasurer and is a member of its board of directors. As such, Xx. Xxxxx X. Xxxxxx may be deemed to have voting and dispositive power over the shares indirectly owned by Xxxxxx Associated Companies, Inc. Of the shares indicated as beneficially owned by Xx. Xxxxx X. Xxxxxx, 119,881 shares are indirectly owned by him through Buffalo Valley Real Estate Co., which directly owns the 119,881 shares. Xx. Xxxxx X. Xxxxxx is an executive officer and director of Buffalo Valley Real Estate Co. As such, he may be deemed to have voting and dispositive power over the shares directly owned by Buffalo Valley Real Estate Company. Of the shares indicated as beneficially owned by Xx. Xxxxx X. Xxxxxx, 22,000 shares are indirectly owned by him through the Xxxxx X. & Xxxxxxxxx X. Xxxxxx Irrevocable Separate Shares Great-Grandchildren Trust, which directly owns the 22,000 shares. Xx. Xxxxx X. Xxxxxx is a trustee of such trust. As such, he may be deemed to have voting and dispositive power over the shares directly owned by such trust. Of the shares indicated as beneficially owned by Xx. Xxxxx X. Xxxxxx, 1,239,452 of his shares are held in his name and the name of his spouse, Xxxxxx X. Xxxxxx, as joint tenants by the entirety. | |
| (5) | Of the shares indicated as beneficially owned by Xxxx X. Xxxxxx, 1,089,684 shares are directly owned by him, excluding 20,000 restricted shares issued to him pursuant to our stock incentive plan of which 7,950 shares are vested and separate reflected in the table above, and 1,332,827 shares are indirectly owned by him through Xxxxxx Associated Companies, Inc., which indirectly owns the shares through Xxxxxx Industries, Inc., its wholly owned subsidiary. Xx. Xxxx X. Xxxxxx is a shareholder of Xxxxxx Associated Companies, Inc., serves as its Secretary and is a member of its board of directors. As such, Xx. Xxxx X. Xxxxxx may be deemed to have voting and dispositive power over the shares indirectly owned by Xxxxxx Associated Companies, Inc. Of the shares indicated as beneficially owned by Xx. Xxxx X. Xxxxxx, 119,881 shares are indirectly owned by him through Buffalo Valley Real Estate Co., which directly owns the 119,881 shares. Xx. Xxxx X. Xxxxxx is an executive officer and director of Buffalo Valley Real Estate Co. As such, he may be deemed to have voting and dispositive power over the shares directly owned by Buffalo Valley Real Estate Co. Of the shares indicated as beneficially owned by Xx. Xxxx X. Xxxxxx, 22,000 shares are indirectly owned by him through the Xxxxx X. & Xxxxxxxxx X. Xxxxxx Irrevocable Separate Shares Great-Grandchildren Trust, which directly owns |
| the 22,000 shares. Xx. Xxxx X. Xxxxxx is a trustee of such trust. As such, he may be deemed to have voting and dispositive power over the shares directly owned by such trust. Of the shares indicated as beneficially owned by Xx. Xxxx X. Xxxxxx, 703,933 shares are indirectly owned by him through the Xxxxxx X. Xxxxxx 2008-A Grantor Retained Annuity Trust, which directly owns the 703,933 shares. Xx. Xxxx X. Xxxxxx is a trustee of such trust. As such, he may be deemed to have voting and dispositive power over the shares directly owned by such trust. Of the shares indicated as beneficially owned by Xx. Xxxx X. Xxxxxx, 241,825 shares are indirectly owned by him through the Xxxxxx X. Xxxxxx 2010 Grantor Annuity Trust which directly owns 241,825 shares. Xx. Xxxx X. Xxxxxx is a trustee of such trust. As such, he may be deemed to have voting and dispositive power over the shares directly owned by such trust. Of the shares indicated as beneficially owned by Xx. Xxxx X. Xxxxxx, 80,449 of the shares are held in his name and the name of his spouse, Xxxxxxx X. Xxxxxx, as joint tenants by the entirety. | ||
| (6) | Of the shares indicated as beneficially owned by Xxxxxx X. Xxxxxx, 1,332,827 shares are indirectly owned by him through Xxxxxx Associated Companies, Inc., which indirectly owns the shares through Xxxxxx Industries, Inc., its wholly owned subsidiary. Xx. Xxxxxx X. Xxxxxx is a shareholder of Xxxxxx Associated Companies, Inc., serves as its Vice President and is a member of its board of directors. As such, Xx. Xxxxxx X. Xxxxxx may be deemed to have voting and dispositive power over the shares indirectly owned by Xxxxxx Associated Companies, Inc. Of the shares indicated as beneficially owned by Xx. Xxxxxx X. Xxxxxx, 119,881 shares are indirectly owned by him through Buffalo Valley Real Estate Co., which directly owns the 119,881 shares. Xx. Xxxxxx X. Xxxxxx is an executive officer and director of Buffalo Valley Real Estate Co. As such, he may be deemed to have voting and dispositive power over the shares directly owned by Buffalo Valley Real Estate Company. Of the shares indicated as beneficially owned by Xx. Xxxxxx X. Xxxxxx, 22,000 shares are indirectly owned by him through the Xxxxx X. & Xxxxxxxxx X. Xxxxxx Irrevocable Separate Shares Great-Grandchildren Trust, which directly owns the 22,000 shares. Xx. Xxxxxx X. Xxxxxx is a trustee of such trust. As such, he may be deemed to have voting and dispositive power over the shares directly owned by such trust. Additionally, Xx. Xxxxxx’x wife is a custodian of a UGMA account for his step-grandchild and, as such, he may be deemed to have voting and dispositive power over the 1,000 shares directly owned by such account. | |
| (7) | Xxxxxx Associated Companies, Inc. indirectly owns 1,332,827 shares through Xxxxxx Industries, Inc., its wholly-owned subsidiary. | |
| (8) | Xxxxxx Xxxxxx and Xxxxxxxxx Xxxxxx are co-trustees. | |
| (9) | See footnotes 1, 4, 5 and 6 above. | |
| (10) | See footnotes 1 through 6 above. | |
| (11) | See footnotes 2, 3 and 5 above. |
| (12) | See footnotes 4 through 6 above. | |
| (13) | See footnote 5 above. | |
| (14) | Xxxxxx X. Xxxxxx holds these shares as joint tenants by the entirety with her spouse, Xxxxx X. Xxxxxx. | |
| (15) | Xxxxxxx X. Xxxxxx owns these shares as joint tenants by the entirety with her spouse, Xxxx X. Xxxxxx. |
| 2. | Address to which notices or other communications are to be sent in accordance with Section 6.11 of this Agreement: |
| For each Stockholder: | [Name of Shareholder] c/o Superior Well Services, Inc. |
|||
| Xxx Xxxxx Xxxx Xxxx | ||||
| X.X. Xxx 0000 | ||||
| Xxxxxxxxxx, XX 00000 | ||||
| Telephone: (000) 000-0000 | ||||
| Facsimile: (000) 000-0000 |
