Attached files
file | filename |
---|---|
EX-99.1 - AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER - Sinoenergy CORP | f8k032910ex99i_sinoenergy.htm |
EX-99.2 - PRESS RELEASE - Sinoenergy CORP | f8k032910ex99ii_sinoenergy.htm |
UNITED
STATES SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 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): March 29,
2010
Sinoenergy Corporation |
(Exact name of registrant as specified in its charter) |
Nevada
|
1-34131
|
84-1491682
|
||
(State
or other jurisdiction of incorporation)
|
(Commission
File Number)
|
(I.R.S.
Employer Identification No.)
|
1603-1604,
Tower B Fortune Centre Ao City, Beiyuan Road, Chaoyang District,
Beijing
China, 100107
(Address
of principal executive offices)
Registrant’s
telephone number, including area code:
|
86-10-84928149
|
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 (see General Instruction A.2. below):
o Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
þ 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))
Item
1.01. Entry into a Material Definitive Agreement.
On March
29, 2010. Sinoenergy Corporation (the “Company”) entered into an amended and
restated agreement and plan of merger (the “Amended Agreement”) with Skywide
Capital Management Limited (“Skywide”) and its wholly-owned subsidiary, SNEN
Acquisition Corp. (the “Acquisition Subsidiary”). The restated agreement
restated and amended the terms of the agreement and plan of merger (the
“Original Agreement”) between the Company and Skywide dated October 12,
2009.
The
Amended Agreement did not change the consideration payable to the Company’s
shareholders. Pursuant to the both the Original Agreement and the
Amended Agreement, upon the effectiveness of the merger, each issued and
outstanding share of the Company’s common stock, other than shares owned by
Skywide, will automatically become and be converted into the right to receive
$1.90 per share, and each option or warrant with an exercise price which is less
than $1.90 per share will receive, upon cancellation of the warrant or option,
the amount by which $1.90 exceeds the exercise price.
The
Restated Agreement provides for a structural change in the manner in which the
merger will be completed. Under the Original Agreement, the Company
was to be merged into Skywide. The Restated Agreement provides that
the Acquisition Subsidiary will be merged into the Company with the result that
the Company will become a wholly-owned subsidiary of Skywide.
In
addition to the change in structure, the Amended Agreement also modified the
terms of the merger agreement as follows:
·
|
Skywide
agreed that, during the 12 months following the effective time of the
merger, it will not (a) sell, assign, transfer or otherwise dispose of
more than 19.9% of the Company’s outstanding shares of capital stock; (b)
cause the Company to merge with an into any corporation or other entity or
liquidate; or (c) cause the Company or any of its Subsidiaries to sell or
otherwise dispose of all or substantially all of its assets, other than in
the ordinary course of its
business.
|
·
|
The
provision in the merger agreement that provided that the Company’s board
of directors would not recommend a superior proposal to its shareholders
without first giving Skywide notice and an opportunity make a revised
offer was deleted.
|
·
|
The
provision which provided for the Company to pay Skywide a termination fee
of $500,000 in the event that the Company terminated the agreement under
certain conditions, including the acceptance of a superior proposal, was
replaced by a provision which limits the fee to the lesser of Skywide’s
actual expenses or 3% of the maximum amount of merger consideration
payable to the Company’s shareholders plus the maximum consideration
payable to the holders of options and warrants with an exercise price less
than $1.90.
|
·
|
The
provision which provided for Skywide to pay the Company $500,000 in the
event that Skywide terminated the agreement under certain conditions was
amended to limit the payment to the Company to its
expenses.
|
Skywide,
which is owned by the Company’s chairman, Mr. Tianzhou Deng, and its president,
Mr. Bo Huang, is the Company’s largest shareholder, owning 6,277,102 shares of
common stock, representing approximately 39.06% of the Company’s common
stock.
Under
Nevada law, the merger requires the affirmative vote of the holders of a
majority of the outstanding shares of common stock. Skywide will vote
its shares in favor of the merger.
The
Amended Agreement was approved by the board of directors (with Mr. Deng and Mr.
Huang not participating), upon the recommendation of a special committee of the
board which was comprised solely of independent directors.
As a
result of the merger, the Company will cease to exist as a separate corporation,
and its common stock will no longer be publicly traded.
Item
8.01 Other Events
On March
5, 2010, counsel for the Company and the directors who are members of the
special committee entered into a memorandum of understanding with respect to the
settlement of the four putative class actions commenced against the
Company and its directors. The actions were commenced (i) in the
Supreme Court of the State of New York, Nassau County, by Stephen Trecaso and
Linda Watts against the Company and its directors and (ii) in the Eighth
Judicial District Court of the State of Nevada in and for Clark County against
the Company, its directors and Skywide. The plaintiffs in the four Nevada
actions are Johan L. Stoltz, Robert E. Guzman, Carol Karch, and Robert
Grabowski. No parties other than the Company and Robert I. Adler, in
all actions, and Greg Marcinkowski, in the Nevada actions, were
served.
The
memorandum of understanding provides for the settlement of all of the actions,
subject to the satisfaction of customary conditions, including the completion of
appropriate documentation and the issuance of all necessary court
approvals. The memorandum of understanding does not require any
change in the economic terms of the merger. Pursuant to the memorandum of
understanding, the Company will include additional disclosure in its proxy
material relating to the approval of the merger. The memorandum of
understanding provides that counsel for plaintiffs will make an application for
legal fees in an amount not exceeding $470,000.
Item
9.01 Financial Statements and Exhibits.
Exhibits | |
99.1 | Amended and Restated Agreement and Plan of Merger by and among Skywide, the Acquisition Subsidiary and the Company dated March 29, 2010 |
99.2 | Press release issued April 6, 2010 relating to the amended and restated merger agreement. |
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.
SINOENERGY
CORPORATION
|
||
(Registrant)
|
||
Date:
April 6, 2010
|
/s/ Shiao Ming Sheng
|
|
Shiao
Ming Sheng, Chief Financial Officer
|