Hyperlawhypertext legal database Partners v. Superior Well Services, Inc. 86 A.D.3d 431

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Partners v. Superior Well Services, Inc.

86 A.D.3d 431 Court N.Y. App. Div. Decision date 2011-07-07 English

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p. 431
Whitebox Concentrated Convertible Arbitrage Partners, L.P., et al., Respondents, v Superior Well Services, Inc., Appellant.
[926 NYS2d 2921]

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

p. 432
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, Inc., 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]). Concur — Andrias, J.P, Sweeny, Renwick, Freedman and Manzanet-Daniels, JJ.

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