W-H Energy Services Inc - Amended Statement of Ownership: Solicitation (SC 14D9/A)
2008年7月22日 - 7:01PM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
SCHEDULE 14D-9
(RULE 14d-101)
SOLICITATION/RECOMMENDATION STATEMENT UNDER SECTION 14(d)(4)
OF THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 1)
W-H Energy Services, Inc.
(Name of Subject Company)
W-H Energy Services, Inc.
(Name of Person Filing Statement)
COMMON STOCK, PAR VALUE $0.0001 PER SHARE
(Title of Class of Securities)
92925E108
(CUSIP Number of Class of Securities)
Ernesto Bautista, III
Vice President and Chief Financial Officer
W-H Energy Services, Inc.
2000 West Sam Houston Parkway South, Suite 500
Houston, Texas 77042
(713) 974-9071
(Name, address and telephone number of person authorized to receive
notice and communications on behalf of the person filing statement)
With copies to:
Michael S. Telle
Edgar J. Marston, III
Bracewell & Giuliani LLP
711 Louisiana St., Suite 2300
Houston, Texas 77002
(713) 223-2300
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Check the box if the filing relates to preliminary communications made before
the commencement date of a tender offer.
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TABLE OF CONTENTS
This Amendment No. 1 (this Amendment No. 1) to Schedule 14D-9 amends and supplements the
Solicitation/Recommendation Statement on Schedule 14D-9 (the Schedule 14D-9) filed with the
Securities and Exchange Commission (the SEC) on
June 24, 2008 by W-H Energy Services, Inc., a Texas corporation
(W-H), relating to the offer (the Offer) by Smith International, Inc., a
Delaware corporation (Smith), through its wholly owned subsidiary, Whitehall Acquisition Corp., a
Texas corporation (the Offeror), to acquire each outstanding share of common stock, par value
$0.0001 per share, of W-H (including the associated preferred share purchase rights, the Shares)
validly tendered and not properly withdrawn in the Offer, for the consideration described in the
preliminary Prospectus/Offer to Exchange (the
Prospectus), which forms a part of Smiths
Registration Statement on Form S-4 filed with the SEC on June 24, 2008, as amended, and which, together with the related letter of election and
transmittal, as the same may be amended, constitute the Offer.
The additional information contained in this Amendment No. 1 is being provided, in part, in
connection with W-Hs and Smiths entry into a memorandum of understanding regarding the settlement
of a purported class action lawsuit. The litigation is described more fully in Item 8. Additional Information of
the Schedule 14D-9, as amended by this Amendment No. 1.
All information in the Schedule 14D-9 is incorporated by reference in this Amendment No. 1,
except that such information is herby amended and supplemented to the extent specifically provided
herein.
ITEM 2.
IDENTITY AND BACKGROUND OF FILING PERSON
Item 2 of the Schedule 14D-9 is hereby amended and supplemented as follows:
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By deleting the first sentence of the fourth
paragraph thereof and replacing such deleted sentence with the
following text
(please refer to page 1 of the
Schedule 14D-9)
:
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The
Offer was commenced by Offeror on June 24, 2008 and expires at
12:00 midnight, New York City time, at the end of August 4,
2008, unless further extended by Offeror.
ITEM 3.
PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS
Item 3 of the Schedule 14D-9 is hereby amended and supplemented as follows:
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By amending and supplementing the section thereof captioned Arrangements with
Smith to add the following text as a new paragraph following the last paragraph of such
section (
please refer to page 6 of the Schedule 14D-9
):
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As
of June 2, 2008, and as of July 20 , 2008, Smith had not made any offers of employment to any of the current
directors or executive officers of W-H.
ITEM 4
THE SOLICITATION OR RECOMMENDATION
Item 4 of the Schedule 14D-9 is hereby amended and supplemented as follows:
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By amending and supplementing the section thereof captioned Background for the
Boards Recommendation to add the following text as a new
paragraph following the seventh
paragraph of such section (
please refer to page 8 of the Schedule 14D-9
):
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Over the next several months, W-H continued to analyze strategic
alternatives and industry conditions generally as part of its continuous
evaluation of its business. In late
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December 2007,
Mr. White and Mr. Jeffrey L. Tepera, W-Hs Vice
President and Chief Operating Officer, had lunch with a
representative of UBS to discuss industry conditions. At such lunch, UBS
suggested that Smith might have an interest in discussing a possible business
combination transaction with W-H.
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By amending and supplementing the section thereof captioned Background for the
Boards Recommendation to delete the thirty-third paragraph of such section in its entirety
and replace such deleted paragraph with the following text (
please refer to page 11 of the
Schedule 14D-9
):
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A UBS representative then outlined the final economic terms of the Offer,
including the value of .48 shares of Smith Common Stock based upon its closing
price on the NYSE of $78.02 earlier in the day, and the
resulting calculation of the Mixed Consideration, the All-Stock Consideration and
the All-Cash Consideration, the proration applicable to the All-Stock
Consideration and the All-Cash Consideration and the cash cap. The UBS
representative then discussed with the W-H Board of Directors UBS valuation
analysis, including its analysis regarding the Smith Common Stock, and, at the request
of the W-H Board of Directors, delivered UBS oral opinion, which was
subsequently confirmed in writing, that as of the date of such opinion and
subject to the assumptions, qualifications and limitations set forth therein, the
consideration to be received by the holders of the Shares pursuant to the Offer
and the Merger was fair, from a financial point of view, to such holders.
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By amending and supplementing the subsection thereof entitled Reasons for the
Boards Recommendation Other Material Factors Considered to delete the first bullet
point thereof in its entirety and replace such deleted bullet point with the following text
(
please refer to page 12 of the Schedule 14D-9
):
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Strategic Alternatives.
The possible alternatives to the Offer and the Merger
(including the possibility of continuing to operate as an independent entity),
the perceived risks and benefits of any such alternatives, including the timing
and likelihood of consummating any such alternative, and the W-H Board of
Directors assessment that the Offer and the Merger, together, present a superior
opportunity to any such alternatives. In making such assessment, the W-H Board
of Directors considered that the Offer and the Merger were superior to the
previous indications of interest from Parties A, B and C, that certain other
prospective buyers were restricted from purchasing certain W-H assets by a
Department of Justice consent decree and that the W-H Board of Directors was
permitted to consider and accept a superior proposal if required by their
fiduciary duties. In agreeing to the Offer and the Merger, the W-H Board of
Directors considered that Smith had indicated that it would withdraw its
valuation proposal if it was publicly disclosed, and that contacting other
potential purchasers would not be in the best interests of the W-H shareholders
as public disclosure of a possible transaction would disrupt customer, employee,
supplier and other relationships, which could have a material adverse effect on
W-Hs results of operations, cash flows and financial condition.
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By amending and supplementing the subsection thereof entitled Reasons for the
Boards Recommendation Other Material Factors Considered to delete the eleventh bullet
point thereof in its entirety and replace such deleted bullet point with the following text
(
please refer to page 13 of the Schedule 14D-9
):
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Due Diligence.
The results of the due diligence investigations of Smith by
W-Hs management and financial and legal advisors. Such due diligence
investigations consisted of customary public company legal and financial due
diligence, including meetings of W-Hs management and financial and legal
advisors with representatives of Smith senior management.
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ITEM 5
PERSONS/ASSETS RETAINED, EMPLOYED, COMPENSATED OR USED
Item 5 of the Schedule 14D-9 is hereby amended and supplemented as follows:
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By amending and supplementing the section thereof captioned Selected Public
Companies Analysis to delete the introductory clause of the first paragraph thereof in its
entirety and replace such deleted clause with the following text (
please refer to page 17
of the Schedule 14D-9
):
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UBS compared financial and stock market data of W-H with corresponding data
for the following publicly traded companies in the oilfield services industry:
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By amending and supplementing the section thereof captioned Selected Public
Companies Analysis to delete the introductory clause of the second paragraph thereof in its
entirety and replace such deleted clause with the following text (
please refer to page 17
of the Schedule 14D-9
):
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In addition, UBS compared selected financial and stock market data of Smith
with corresponding data for the following publicly traded companies that derive a
significant portion of their revenue from the oilfield services industry:
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By amending and supplementing the section thereof captioned
Selected Precedent Transactions Analysis to delete the
penultimate sentence of the second paragraph thereof and replacing such deleted sentence with the
following text (
please
refer to page 19 of the Schedule 14D-9
):
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Financial data for the selected transactions were based on publicly available
information at the time of announcement of
the relevant transaction, with forward
looking information relating to the targets of the selected transactions based on
I/B/E/S estimates and public filings available at such time.
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By amending and supplementing the section thereof captioned Miscellaneous to
delete the sole paragraph thereof in its entirety and replace such deleted paragraph with
the following text (
please refer to page 20 of the Schedule 14D-9
):
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Under the terms of UBS engagement, W-H has agreed to pay UBS for its
financial advisory services in connection with the Offer and the Merger an
aggregate fee estimated to be approximately $24.0 million, a portion of which was
payable upon completion of UBS opinion and approximately $22 million of which is
contingent upon consummation of the Offer and Merger. In addition, W-H has agreed
to reimburse UBS for its reasonable expenses, including fees, disbursements and
other charges of counsel, and to indemnify UBS and related parties against
liabilities, including liabilities under federal securities laws, relating to, or
arising out of, its engagement. In the ordinary course of business, UBS and its
affiliates may hold or trade, for their own accounts and the accounts of their
customers, securities of W-H and Smith, and, accordingly, may at any time hold a
long or short position in such securities. W-H selected UBS as its financial
advisor in connection with the Offer and the Merger because UBS is an
internationally recognized investment banking firm with substantial experience in
similar transactions. UBS is continually engaged in the valuation of businesses
and their securities in connection with mergers and acquisitions, leveraged
buyouts, negotiated underwritings, competitive bids, secondary distributions of
listed and unlisted securities and private placements. UBS has provided
investment banking services in the past to W-H and Smith for which it has
received compensation, none of which has been received or earned in the past two
years. In addition, Smith may engage UBS from time to time in the future, but no
such engagements have been entered into at this time.
ITEM 8.
ADDITIONAL INFORMATION
Item 8 of the Schedule 14D-9 is hereby amended and supplemented as follows:
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By adding the following new section immediately following the section captioned
State Takeover Statutes (
please refer to page 21 of the Schedule 14D-9
):
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Customer Contracts
W-H does not believe that the Offer and the Merger would result in a default
under its contracts with its customers that would be material to its business.
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By amending and supplementing the section thereof captioned Regulatory Approvals to delete
the first four sentences of the third paragraph of such section and replacing such deleted
sentences with the following text:
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Pursuant to the requirements of the HSR Act, Smith and W-H each filed a
Notification and Report Form with respect to the Offer and the Merger with the
Antitrust Division of the DOJ and the FTC on June 24, 2008. On July 18, 2008,
following consultation with the Antitrust Division of the DOJ, Smith withdrew and
re-filed its Notification and Report Form with respect to the Offer and the Merger.
Under the provisions of the HSR Act applicable to the Offer, the acquisition of
Shares pursuant to the Offer may be completed following the expiration of a
30-calendar day waiting period (if the thirtieth day falls on a weekend or holiday,
the waiting period will expire on the next business day) following the re-filing by
Smith with respect to the Offer, unless Smith or W-H receives a request for
additional information and documentary material from the Antitrust Division of the
DOJ or FTC. If, within the 30-day waiting period, either the Antitrust Division of
the DOJ or the FTC requests additional information and documentary material from
Smith or W-H concerning the Offer, the waiting period will be extended and will
expire at 11:59 p.m., New York City time, on the thirtieth calendar day after the
date of substantial compliance by Smith or W-H with that request.
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By amending and supplementing the section thereof captioned Litigation to delete
the last sentence of the sole paragraph thereof in its entirety and replace such deleted
sentence with the following text (
please refer to page 22 of the Schedule 14D-9
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On July 3, 2008, plaintiff filed an amended petition further alleging that
defendants had purportedly failed to disclose allegedly material information
relating to the Offer and the Merger.
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By amending and supplementing the section thereof captioned Litigation to add the
following new paragraph immediately following the sole paragraph
thereof
(please refer to page 22 of the Schedule 14D-9)
:
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On July 10, 2008, the parties entered into a Memorandum of Understanding
regarding the settlement of the lawsuit. Under the terms of the proposed
settlement, the claims of the named plaintiff and the proposed class of public
shareholders will be dismissed and released on behalf of the settlement class.
Finalization of the proposed settlement remains subject to several conditions,
including court approval and completion of the Offer and the Merger. In
connection with the proposed settlement, Smith and W-H have agreed to provide
additional disclosures in this Schedule
14D-9 (such disclosures are made herein) and Smiths Registration Statement on
Form S-4, respectively. The parties also contemplate that plaintiffs counsel
will petition the court for an award of attorneys fees and expenses to be paid
by defendants, up to an agreed-upon limit.
ITEM 9.
EXHIBITS
Item 9 of the Schedule 14D-9 is hereby amended and restated as follows:
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Exhibit No.
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Description
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(a)(1)
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Prospectus/Offer to Exchange, dated
June 24, 2008, as amended
(incorporated by reference to Smiths Registration Statement
on Form S-4 (File No. 333-151897)).
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(a)(2)
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Letter of Election and Transmittal, dated June 24, 2008
(incorporated by reference to Exhibit 99.3 to Smiths
Registration Statement on Form S-4 (File No. 333-151897)).
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(a)(3)*
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Letter to Shareholders of W-H, dated June 24, 2008.
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(a)(4)*
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Information Statement pursuant to Section 14(f) of the
Securities Exchange Act of 1934 and Rule 14f-1 thereunder.
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(a)(5)*
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Fairness Opinion of UBS Securities LLC to the Board of
Directors of W-H, dated June 2, 2008.
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(a)(6)
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Joint Press Release issued by Smith and W-H, dated June 3,
2008, announcing the execution of the Agreement and Plan of
Merger among Smith, W-H and Offeror (incorporated by reference
to Exhibit 99.01 to W-Hs Current Report on Form 8-K filed
with the SEC on June 5, 2008).
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(a)(7)
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Transcript of the Investor Call on June 3, 2008 regarding
announcement of the Agreement and Plan of Merger among Smith,
W-H and Offeror (incorporated by reference to Exhibit 99.02 to
W-Hs Current Report on Form 8-K filed with the SEC on June 5,
2008).
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(a)(8)*
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Joint Press Release issued by Smith and W-H, dated June 24,
2008, announcing the commencement of the Offer.
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(a)(9)
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Joint Press Release issued by
Smith and W-H, dated July 18, 2008, announcing the extension of
the Offer.
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Exhibit No.
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Description
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(e)(1)
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Agreement and Plan of Merger, dated as of June 3, 2008, by and
among W-H, Smith and the Offeror (incorporated by reference to
Exhibit 2.01 to W-Hs Current Report on Form 8-K filed with
the SEC on June 5, 2008).
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(e)(2)
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W-H Energy Services, Inc. 1997 Stock Option Plan as restated,
effective as of May 12, 2004 (incorporated by reference to
Appendix B of W-Hs Definitive Proxy Statement on Schedule
14A, filed with the SEC on April 6, 2004).
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(e)(3)
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W-H Energy Services, Inc. 2006 Stock Awards Plan, effective as
of May 10, 2006 (incorporated by reference to Exhibit 10.1 to
W-Hs Current Report on Form 8-K filed with the SEC on May 10,
2006).
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(e)(4)
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Non-Statutory Stock Option Agreement for Kenneth T. White,
Jr., dated March 29, 1999 (incorporated by reference to
Exhibit 10.5 to W-Hs Registration Statement on Form S-1 (No.
333-43411).
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(e)(5)
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Amended and Restated Employment Agreement of Kenneth T. White,
Jr., effective as of January 1, 2008 (incorporated by
reference to Exhibit 10.1 to W-Hs Annual Report on Form 10-K
for the fiscal year ended December 31, 2007).
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(e)(6)
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Amended and Restated Employment Agreement of Ernesto Bautista,
III, effective as of January 1, 2008 (incorporated by
reference to Exhibit 10.10 to W-Hs Annual Report on Form 10-K
for the fiscal year ended December 31, 2007).
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(e)(7)
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Amended and Restated Employment Agreement of William J. Thomas
III, effective as of January 1, 2008 (incorporated by
reference to Exhibit 10.2 to W-Hs Annual Report on Form 10-K
for the fiscal year ended December 31, 2007).
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(e)(8)
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Amended and Restated Employment Agreement of Glen J. Ritter,
effective as of January 1, 2008 (incorporated by reference to
Exhibit 10.9 to W-Hs Annual Report on Form 10-K for the
fiscal year ended December 31, 2007).
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(e)(9)
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Amended and Restated Employment Agreement of Jeffrey L.
Tepera, effective as of January 1, 2008 (incorporated by
reference to Exhibit 10.2 to W-Hs Annual Report on Form 10-K
for the fiscal year ended December 31, 2007).
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(e)(10)
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Amended and Restated Employment Agreement of Stuart J. Ford,
effective as of January 1, 2008 (incorporated by reference to
Exhibit 10.11 to W-Hs Annual Report on Form 10-K for the
fiscal year ended December 31, 2007).
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*
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Previously filed with the Schedule 14D-9 on June 24, 2008.
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ANNEX
A
INFORMATION STATEMENT PURSUANT TO SECTION 14(F) OF THE SECURITIES EXCHANGE ACT OF 1934 AND
RULE 14F-1 THEREUNDER
Annex A to the Schedule 14D-9 is hereby amended and supplemented as follows:
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By deleting the first sentence of the third paragraph thereof and replacing such
deleted sentence with the following text
(please refer to page A-1 of Annex A to the
Schedule 14D-9)
:
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The Offer was commenced by Offeror on June 24, 2008 and expires at 12:00
midnight, New York City time, at the end of August 4, 2008, unless further extended by
Offeror.
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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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W-H ENERGY SERVICES, INC.
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By:
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/s/ Ernesto Bautista, III
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Ernesto Bautista, III
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Vice President and Chief Financial Officer
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Dated:
July 21, 2008
-6-
W H Energy (NYSE:WHQ)
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