- Additional Proxy Soliciting Materials - Non-Management (definitive) (DFAN14A)
2010年3月1日 - 8:04PM
Edgar (US Regulatory)
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report
(Date of earliest event reported):
February 26,
2010 (February 23, 2010)
PINNACLE
GAS RESOURCES, INC.
(Exact Name of
Registrant as Specified in Charter)
Delaware
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001-33457
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30-0182582
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(State or Other
Jurisdiction of
Incorporation)
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(Commission File
Number)
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(IRS
Employer Identification No.)
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1
East Alger Street
Sheridan,
Wyoming 82801
(Address of
Principal Executive Offices) (Zip Code)
(307)
673-9710
(Registrants
telephone number, including area code)
Not
applicable
(Former Name or
Former Address, if Changed Since Last Report)
Check the appropriate box
below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions:
o
Written communications pursuant to Rule 425
under the Securities Act (17 CFR 230.425)
x
Soliciting material pursuant to Rule 14a-12
under the Exchange Act (17 CFR 240.14a-12)
o
Pre-commencement communications pursuant
to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o
Pre-commencement communications pursuant
to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
1.01 Entry into a Material Definitive Agreement
On February 23,
2010, Pinnacle Gas Resources, Inc. (the Company) entered into an Agreement
and Plan of Merger (the Merger Agreement) with Powder Holdings, LLC, a
Delaware limited liability company (Powder), and Powder Acquisition Co., a Delaware
corporation and a direct, wholly owned subsidiary of Powder (Merger Sub). Powder is currently a wholly - owned
subsidiary of Scotia Waterous (USA), Inc. At the closing of the transactions contemplated
by the Merger Agreement, Powder is expected to be owned by an investor group
led by Scotia Waterous (USA), Inc., which includes DLJ Merchant Banking
Partners III, L.P. and affiliated investment funds (collectively, DLJ) and
certain members of the Companys management team.
The Merger Agreement
The
Merger Agreement provides that, upon the terms and subject to the conditions
set forth in the Merger Agreement, Merger Sub will merge with and into Company,
with the Company continuing as the surviving corporation (the Merger).
Subject
to the terms and conditions of the Merger Agreement, at the effective time and
as a result of the Merger, each outstanding share of common stock, par value
$.01 per share, of the Company (other than shares as to which appraisal rights
are properly exercised under Delaware law and shares owned by the Company,
Powder, Merger Sub or their respective subsidiaries) will be converted into the
right to receive a cash amount of $0.34 per share (the Merger Consideration).
In addition, at the effective time of
the Merger, (a) each outstanding and unexercised stock option and stock
appreciation right will be cancelled and the holder of such option or stock
appreciation right will receive a single lump sum cash payment equal to the
product of: (i) the excess, if any,
of the Merger Consideration over the exercise price or base price, as
applicable, per share subject to such option or right, multiplied by (ii) the
total number of shares of common stock subject to such option or right and (b) each
outstanding restricted stock award, whether or not then vested, will be
cancelled and the holder of such restricted stock award will receive a single
lump sum cash payment equal to the product of (i) the Merger
Consideration, multiplied by (ii) the total number of shares of common
stock subject to such award.
The
obligations of the parties to consummate the Merger are subject to the
satisfaction or waiver of certain closing conditions, including (a) approval
of the Merger by the holders of not less than a majority of the Companys common
stock, excluding common stock held by DLJ or the Companys chief executive officer
or chief financial officer, which condition cannot be waived by the parties (the Stockholder Approval), and (b) the
absence of any injunction, restraint or prohibition on the completion of the Merger. Each partys obligation to close the Merger
is also subject to the accuracy of certain representations and warranties of,
and compliance with certain covenants by, the parties to the Merger Agreement,
in each case as set forth in the Merger Agreement. In addition, Powder and Merger Subs obligations
to complete the Merger are subject to certain additional conditions,
including: (i) the absence of any
material adverse effect on the Company; (ii) the Company obtaining a
waiver from the lenders under its credit agreement, for a period of 60 days
following the effective time of the Merger, of the change of control event
resulting from the Merger; and (iii) DLJ contributing all of its shares of
common stock of the Company to Powder in exchange for ownership interests
therein in accordance with the terms of a contribution agreement among Powder,
DLJ and Scotia Waterous (USA), Inc., in each case, as set forth in the
Merger Agreement. The Company, Powder
and Merger Sub have made customary representations and warranties in the Merger
Agreement.
The
Merger Agreement contains certain termination rights for both the Company and
Powder, including in the event the Merger is not consummated by August 23,
2010 or Stockholder Approval has not been obtained on or before such date. The Merger Agreement further provides that,
upon termination of the Merger Agreement under specified circumstances, the
Company may be required to pay Powder a termination fee of $1,000,000 (which is
reduced to $500,000 under certain circumstances) and reimbursement of Powders out-of-pocket
fees and expenses of up to $600,000 in connection with the Merger Agreement.
A copy of the Merger
Agreement is attached hereto as Exhibit 2.1 and is incorporated by
reference herein. The foregoing description is only a summary of the
Merger Agreement and does not purport to be complete and is qualified in its
entirety by the Merger Agreement as attached.
2
Voting Agreement
Concurrently with the
execution of the Merger Agreement, the Company and Powder also entered into a
Voting Agreement, dated as of February 23, 2010 (the Voting Agreement),
with all of the directors, certain executive officers, and certain substantial
stockholders of the Company (collectively, the Stockholders). Each
Stockholder has agreed to, during the term of the Voting Agreement, at any
meeting of the stockholders of the Company, vote all of such Stockholders
shares (a) in favor of adopting the Merger Agreement, (b) against any
alternative transaction proposal and (c) against any action that would
result in the breach of the Merger Agreement.
An aggregate of 43.8% of the current outstanding shares of common stock
is subject to the Voting Agreement.
A copy of the Voting
Agreement is attached hereto as Exhibit 10.1 and is incorporated by
reference herein. The foregoing description is only a summary of the
Voting Agreement and does not purport to be complete and is qualified in its
entirety by the Voting Agreement as attached.
The Merger Agreement and
the Voting Agreement govern the contractual rights between the parties thereto
in relation to the Merger. The above summary of the principal terms of the
Merger Agreement and the Voting Agreement, and the Merger Agreement and the
Voting Agreement attached as exhibits to this Form 8-K, are intended to
provide information regarding the terms of the Merger Agreement and the Voting
Agreement. The Merger Agreement and the
Voting Agreement and the related summaries are not intended to modify or
supplement any factual disclosures about the Company or any of the other
parties to the Merger Agreement or the Voting Agreement in the Companys
reports filed with the SEC. In
particular, the Merger Agreement and the Voting Agreement and the related
summaries are not intended to be, and should not be relied upon as, disclosures
regarding any facts and circumstances relating to the Company or any of the
other parties to the Merger Agreement or the Voting Agreement. The
representations and warranties have been negotiated with the principal purpose
of establishing the circumstances in which a party may have the right not to
close the Merger if the representations and warranties of the other parties
prove to be untrue due to a change in circumstance or otherwise, and allocate
risk between the parties, rather than establishing matters as facts. The
representations and warranties may also be subject to a contractual standard of
materiality different from those generally applicable under securities laws.
Additional Information and Where to Find It
The
proposed Merger will be submitted to the Companys stockholders for their
consideration, and the Company will file a proxy statement to solicit Stockholder
Approval of the proposed Merger, as well as other relevant documents concerning
the proposed Merger with the Securities and Exchange Commission (the SEC).
The Companys stockholders
are urged to read the proxy statement regarding the proposed Merger when it
becomes available and any other relevant documents filed with the SEC, as well
as any amendment or supplements to those documents, because they will contain
important information.
The
Companys stockholders will be able to obtain a free copy of the proxy statement,
as well as other filings with the SEC containing information about the Company,
at the SECs website at www.sec.gov.
Copies of the proxy statement can also be obtained, when available,
without charge, by directing a request to Pinnacle Gas Resources, Inc.,
Investor Relations, 1 East Alger, Sheridan, Wyoming 82801, or at Pinnacles
corporate website at www.pinnaclegas.com.
Participant Information
The
Company and its directors and officers may be deemed to be participants in the
solicitation of proxies from the Companys stockholders in connection with the
proposed merger. Certain information
regarding the participants and their interests in solicitation is set forth in
the Form 10-K filed by the Company with the SEC on April 15, 2009 and
Form 10-K/A filed by the Company with the SEC on December 1, 2009,
which are available free of charge from the SEC and the Company at the websites
indicated above. Information regarding
the interests of these persons and the solicitation will be more specifically
set forth in the proxy statement concerning the proposed
3
Merger
that will be filed by the Company with the SEC and which will be available free
of charge from the SEC and the Company, as indicated above.
4
Item 9.01
Financial Statements and Exhibits
(d) Exhibits
2.1
Agreement and Plan of Merger, dated February 23,
2010, by and between Powder Holdings, LLC,
Powder Acquisition Co., and Pinnacle Gas Resources, Inc.
10.1
Voting Agreement by and among Powder Holdings, LLC, Pinnacle
Gas Resources, Inc. and the signatories thereto.
SIGNATURES
Pursuant to the
requirements of the Securities Exchange Act of 1934, the Registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly
authorized.
Date: February 26,
2010
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PINNACLE GAS RESOURCES, INC.
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By:
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/s/ Ronald T. Barnes
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Ronald T. Barnes
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Senior Vice President
and Chief Financial Officer
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5
Exhibit Index
Exhibit No.
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Description
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2.1
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Agreement and Plan of
Merger, dated February 23, 2010, by and between Powder Holdings, LLC,
Powder Acquisition Co., and Pinnacle Gas Resources, Inc.
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10.1
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Voting Agreement by and
among Powder Holdings, LLC, Pinnacle Gas Resources, Inc. and the
signatories thereto.
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6
Pinnacle Gas Resources (MM) (NASDAQ:PINN)
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Pinnacle Gas Resources (MM) (NASDAQ:PINN)
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