Whitebox Concentrated Convertible Arbitrage Partners, L.P. v Superior Well Servs., Inc.

Whitebox Concentrated Convertible Arbitrage Partners, L.P. v Superior Well Servs., Inc. 2011 NY Slip Op 05865 Decided on July 7, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 7, 2011
Andrias, J.P., Sweeny, Renwick, Freedman, Manzanet-Daniels, JJ.
5510 651465/10

[*1]Whitebox Concentrated Convertible Arbitrage Partners, L.P., et al., Plaintiffs-Respondents,

v

Superior Well Services, Inc., Defendant-Appellant.



 
Simpson Thacher & Bartlett LLP, New York (Bruce D.
Angiolillo of counsel), for appellant.
Ross & Orenstein LLC, Minneapolis, MN (John B. Orenstein
of counsel), for respondents.

Order, Supreme Court, New York County (Charles E. Ramos, J.), entered March 3, 2011, which denied defendant's motion to dismiss the complaint, unanimously reversed, on the law, with costs, and the motion granted. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.

Defendant established by documentary evidence that the acquisition of more than 50% of its stock and the subsequent merger with Diamond Acquisition Corporation did not constitute a "Fundamental Change" as defined in the certificate of designations, which would have required defendant to provide a Fundamental Change Notice to its preferred shareholders within 10 days of a Fundamental Change. The tender offer for common shares and defendant's subsequent merger into Diamond, with defendant being the surviving entity, were two consecutive steps in a single, integrated transaction (see Noddings Inv. Group, Inc. v Capstar Communications, 1999 WL 182568, 1999 Del Ch LEXIS 56 [Del Ch 1999], affd 741 A2d 16 [Del 1999]).

The plain language of the certificate of designations for the convertible preferred stock unambiguously demonstrated that defendant, a Delaware corporation, did not effect a Fundamental Change (see Bailey v Fish & Neave, 8 NY3d 523, 528 [2007]). The fact that plaintiffs attached a particular, subjective meaning to the term "transaction" that differed from the term's plain meaning did not render the term ambiguous (see Slattery Skanska Inc. v American Home Assur. Co., 67 AD3d 1, 15 [2009]; Innophos, Inc. v Rhodia, S.A., 38 AD3d 368, 369 [2007], affd 10 NY3d 25 [2008]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 7, 2011 [*2]

CLERK