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United States securities and exchange commission logo
November 4, 2021
Robert J. Willette, Esq.
General Counsel
Wilks Brothers, LLC
333 Shops Blvd
Willow Park, TX 76087
Re: Dawson Geophysical
Company
Schedule TO-T
Filed November 1,
2021 by WB Acquisitions Inc. and Wilks Brothers, LLC
File No. 5-37717
Dear Mr. Willette:
We have reviewed your filing and have the following comments. In
some of our
comments, we may ask you to provide us with information so we may better
understand your
disclosure.
Please respond to these comments by providing the requested
information or advise us as
soon as possible when you will respond. If you do not believe our
comments apply to your facts
and circumstances, please tell us why in your response.
After reviewing your
response to these comments, we may have additional comments.
Schedule TO-T filed November 1, 2021
General, page i
1. We note disclosure
indicating that (1) if, after two 65% Threshold Extensions have
occurred, the 80%
Minimum Condition has not been met, then the Offer will expire unless
Merger Sub and Target
mutually agree that Merger Sub may accept for purchase Shares
tendered in the Offer
even though the 80% Minimum Condition has not been satisfied and
(2) if Merger Sub
accepts for purchase Shares representing less than the 80% Minimum
Condition, Merger Sub
and Target may also mutually agree to proceed with holding the
Target Shareholder
Meeting and seeking the Target Shareholder Approval to consummate
the Merger. We also
note disclosure in the third paragraph on page 15 of the Offer to
Purchase regarding
Merger Sub's intentions following a material change. With a view
towards revised
disclosure, please confirm that Merger Sub views the occurrence of
scenario (1) as a
material change to the terms of the Offer such that Merger Sub will
extend the Offer,
disseminate additional tender offer materials regarding such material
Robert J. Willette, Esq.
Wilks Brothers, LLC
November 4, 2021
Page 2
change and extend the Expiration Date if necessary to ensure that the
Offer remains
open for a minimum of five business days from the date the material
change is first
published, sent or given to Shareholders.
2. Refer to the preceding comment. Given the materiality of scenario (2)
to a Shareholder's
tender decision and with a view towards revised disclosure, please
advise us whether such
additional tender offer materials will provide Shareholders with any
clarity regarding
whether Merger Sub and Target have agreed to proceed with holding the
Target
Shareholder Meeting and seeking the Target Shareholder Approval to
consummate the
Merger, to the extent such facts are known at the time of Merger Sub's
dissemination of
such materials or become known during the period following the
dissemination of such
announcement and prior to the Expiration Date.
3. We note the disclosure on page 27 disclosing that on January 19, 2021,
Parent filed a
Schedule 13D disclosing ownership of 2.3 million shares (approximately
9.7%
ownership). Please advise us as to Parent's affiliate status with
respect to Target. Please
refer to the definition of affiliate in Exchange Act Rule
13e-3(a)(1) and the definition of
"control" in Exchange Act Rule 12b-2.
Offer to Purchase
Will the Offer be followed by the Merger if not all of the Shares are tendered
in the Offer?, page
7
4. Disclosure in this Q&A indicates that "[i]f the 65% Threshold is
reached, but the 80%
Minimum Condition is not met, Parent and Target may mutually agree to
amend or waive
the 80% Minimum Condition (except for any amendment having the effect
of increasing
the percentage of Shares required to meet the 80% Minimum Condition
above 80%) and
close the Offer." Please revise to clarify and reconcile this
disclosure with disclosure
elsewhere in the Offer to Purchase regarding the "65% Threshold
Extension" indicating
that Merger Sub will extend the Offer for up to two successive 10
business day extensions
in an effort to reach the 80% Minimum Condition. The aforementioned
disclosure in the
Q&A would appear to refer to the parties' actions following expiration
of the 65%
Threshold Extension as opposed to following the Initial Expiration
Date.
5. Refer to the third paragraph in this Q&A. If Merger Sub accepts for
purchase Shares
representing less than the 80% Minimum Condition, with a view towards
revised
disclosure, please advise why Merger Sub and Target "may" as opposed to
"will" agree to
proceed with holding the Target Shareholder Meeting and seeking the
Target Shareholder
FirstName LastNameRobert J. Willette, Esq.
Approval to consummate the Merger. For example, describe what
considerations will
Comapany NameWilks
impact Brothers,
whether the parties LLC
decide to proceed with the shareholder
meeting following
consummation
November 4, 2021 Pageof 2the tender offer.
FirstName LastName
Robert J. Willette, Esq.
FirstName LastNameRobert J. Willette, Esq.
Wilks Brothers, LLC
Comapany 4,
November NameWilks
2021 Brothers, LLC
November
Page 3 4, 2021 Page 3
FirstName LastName
Offer to Purchase
Until what time can I withdraw tendered Shares?, page 10
6. Refer to the second sentence of this FAQ. With a view towards revised
disclosure, please
advise us why Merger Sub might not accept Shares for payment by the
Offer End Date.
Introduction, page 12
7. Disclosure on page 13 indicates that "[i]n certain situations, Target
and Parent may
mutually agree to amend or waive the 80% Minimum Condition and close
the Offer."
Refer to our comment regarding material changes and the requirement
that five business
days remain in the offer following dissemination of such material
change. Please revise to
clarify that any such amendment or waiver in the above disclosure will
be conducted
consistent with such requirement.
Terms of the Offer, page 14
8. Disclosure in the third paragraph on page 14 indicates that "[w]e have
agreed in the
Merger Agreement that, subject to our right to terminate the Merger
Agreement pursuant
to its terms, if any of the Offer Conditions are not satisfied or
waived at any scheduled
Expiration Date, Merger Sub shall extend the Offer for any period
required by any rule,
regulation, interpretation or position of the SEC or the staff thereof
applicable to the Offer
or any period otherwise required by the rules and regulations of
NASDAQ or applicable
law. " With a view towards disclosure, please describe the
circumstances when this
Merger Agreement would apply. For example, if the 65% Threshold is not
met, please
advise us if the parties anticipate that Merger Sub would be able to
terminate the offer
without delay or instead would only do so after an extension.
Withdrawal Rights, page 19
9. Refer to the top of page 20. Such disclosure suggests that the
Depositary may, on behalf
of the bidder, retain all shares indefinitely. Please revise to
clarify the potential duration
that the Depositary may retain the Shares if a tendering Shareholder
were to properly
request withdrawal. Refer to Merger Sub's obligations under Exchange
Act Rule 14e-
1(b).
Offer to Purchase
Conditions of the Offer, page 45
10. Condition (C) refers to the defined term "Burdensome Condition" but
such term is not
found in section 16. Please advise or revise.
11. We note the statement in the last paragraph on page 47 that "[t]he
failure or delay by
Parent or Merger Sub at any time to exercise any of the foregoing
rights will not be
deemed a waiver of any such right and each such right will be deemed
an ongoing right
which may be asserted at any time and from time to time." This
statement suggests that
Robert J. Willette, Esq.
Wilks Brothers, LLC
November 4, 2021
Page 4
the offerors may become aware that an offer condition has been triggered
or otherwise has
become incapable of being satisfied, yet the offer may proceed without
the offerors
making a disclosure. We remind the offerors that they must amend the
offer to disclose
material changes, which may include the triggering of a material
offer condition. To the
extent the offerors become aware of any condition being triggered
that would enable
them to terminate the offer or otherwise cancel their obligation to
accept tenders, and the
offerors elect to proceed with the Offer anyway, we view that decision
as being
tantamount to a waiver of the condition. Depending on the materiality of
the waived
condition and the number of days remaining in the offer, the bidder may
be required to
extend the offer and recirculate new disclosure to security holders.
Please confirm the
parties' understanding of both points in your response letter.
We remind you that the filing persons are responsible for the accuracy
and adequacy of
their disclosures, notwithstanding any review, comments, action or absence of
action by the staff.
Please direct any questions to Perry Hindin at 202-551-3444.
Sincerely,
FirstName LastNameRobert J. Willette, Esq.
Division of
Corporation Finance
Comapany NameWilks Brothers, LLC
Office of Mergers &
Acquisitions
November 4, 2021 Page 4
cc: Michael S. Telle
FirstName LastName