UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14C
Information Statement Pursuant to Section 14(c)
of the Securities Exchange Act of 1934 (Amendment No. )
Check the appropriate box: | |
x | Preliminary Information Statement |
o | Confidential, for Use of the Commission Only (as permitted by Rule 14c-5(d)(2)) |
o | Definitive Information Statement |
| CARBON NATURAL GAS COMPANY |
| (Name of Registrant As Specified In Its Charter) |
Payment of Filing Fee (Check the appropriate box): | |
x | No fee required |
o | Fee computed on table below per Exchange Act Rules 14c-5(g) and 0-11 |
(1) | Title of each class of securities to which transaction applies: |
|
|
(2) | Aggregate number of securities to which transaction applies: |
|
|
(3) | Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was determined): |
|
|
(4) | Proposed maximum aggregate value of transaction: |
|
|
(5) | Total fee paid: |
|
|
o | Fee paid previously with preliminary materials. |
o | Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. |
(1) | Amount Previously Paid: |
|
|
(2) | Form, Schedule or Registration Statement No.: |
|
|
(3) | Filing Party: |
|
|
(4) | Date Filed: |
|
|
CARBON NATURAL GAS COMPANY
NOTICE OF STOCKHOLDER ACTION BY WRITTEN CONSENT
To our Stockholders:
We are furnishing the attached Information Statement to the holders of common stock of Carbon Natural Gas Company, a Delaware corporation (the “Company”). The purpose of the Information Statement is to notify stockholders that the Board of Directors of the Company (the “Board”) and the holders of more than a majority of our common stock (approximately 80%) (the “Voting Stockholders”), have taken and approved actions to amend the Company’s Certificate of Incorporation to increase the number of authorized shares of common stock, par value $0.01 per share, from 100,000,000 to 200,000,000, and to approve and adopt a Certificate of Amendment which sets forth such amendment. The amendment to our Certificate of Incorporation is described in this Information Statement.
The amendment to the Company’s Certificate of Incorporation will not be effective until the Company files its Certificate of Amendment with the Delaware Secretary of State to accomplish the amendment discussed herein. The Certificate of Amendment will not be filed until on or after July 17, 2011.
The accompanying Information Statement is being furnished to our stockholders for informational purposes only, pursuant to Section 14(c) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations prescribed thereunder. As described in this Information Statement, the foregoing actions have been approved by stockholders representing more than a majority of the voting power of our outstanding shares of common stock. The Board is not soliciting your proxy or consent in connection with the matters discussed above. You are urged to read the Information Statement in its entirety for a description of the action taken by certain stockholders representing more than a majority of the voting power of our outstanding shares of common stock.
The Information Statement is being made available on or about June 27, 2011 to stockholders of record as of June 10, 2011, the record date for determining our stockholders eligible to consent in writing to the matters discussed above and entitled to notice of those matters.
THIS IS FOR YOUR INFORMATION ONLY. YOU DO NOT NEED TO DO ANYTHING IN RESPONSE TO THIS INFORMATION STATEMENT. THIS IS NOT A NOTICE OF SPECIAL MEETING OF STOCKHOLDERS AND NO STOCKHOLDER MEETING WILL BE HELD TO CONSIDER ANY MATTER DESCRIBED HEREIN.
| Sincerely, |
|
|
| /s/ Patrick R. McDonald |
| Chief Executive Officer and Director |
CARBON NATURAL GAS COMPANY
1700 Broadway
Suite 2020
Denver, Colorado 80290
(720) 407-7043
INFORMATION STATEMENT
We Are Not Asking You for a Proxy and
You are Requested Not To Send Us a Proxy
INTRODUCTION
Stockholder Actions
We are disseminating this Information Statement to notify you that certain stockholders (the “Voting Stockholders”), being the owners of more than a majority of the voting power of the Company’s outstanding shares of common stock, delivered written consent to the Company on June 15, 2011 to approve an amendment to our Certificate of Incorporation and to approve the form and terms of the Company’s Certificate of Amendment (collectively the “Actions”). The amendment to the Company’s Certificate of Incorporation and the Actions are with respect to an amendment to the Company’s Certificate of Incorporation to provide that the capital stock of the Company be increased to 201,000,000 shares, including 200,000,000 shares of common stock and 1,000,000 shares of preferred stock, each with a par value of $0.01 per share.
Forward Looking Statements
This Information Statement may contain certain “forward-looking” statements, as defined in Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended, in connection with the Private Securities Litigation Reform Act of 1995 that involve risks and uncertainties, as well as assumptions that, if they never materialize or prove incorrect, could cause our results to differ materially and adversely from those expressed or implied by such forward-looking statements
Such forward-looking statements include statements about our expectations, beliefs or intentions regarding actions contemplated by this Information Statement, our potential business, financial condition, results of operations, strategies or prospects. You can identify forward-looking statements by the fact that these statements do not relate strictly to historical or current matters. Rather, forward-looking statements relate to anticipated or expected events, activities, trends or results as of the date they are made and are often identified by the use of words such as “anticipate,” “believe,” “continue,” “could,” “estimate,” “expect,” “intend,” “may,” or “will,” and similar expressions or variations. Because forward-looking statements relate to matters that have not yet occurred, these statements are inherently subject to risks and uncertainties that could cause our actual results to differ materially from any future results expressed or implied by the forward-looking statements. Many factors could cause our actual activities or results to differ materially from the activities and results anticipated in forward-looking statements. Furthermore, such forward-looking statements speak only as of the date of this Information Statement. We undertake no obligation to update any forward-looking statements to reflect events or circumstances occurring after the date of such statements.
Vote Required
We are not seeking consent, authorizations, or proxies from you. The vote which was required to approve the amendment to our Certificate of Incorporation was the affirmative vote of the holders of a majority of the Company’s voting stock.
On June 10, 2011 (the “Record Date”), there were 47,518,739 shares of the Company’s common stock issued and outstanding. Each share of common stock is entitled to one vote. No other classes of stock of the Company are issued and outstanding.
The Delaware General Corporation Law (the “DGCL”) permits the holders of a corporation’s outstanding stock representing a majority of that corporation’s voting power to approve and authorize corporate actions by written consent as if such actions were undertaken at a duly called and held meeting of stockholders. In order to significantly reduce the costs and management time involved in soliciting and obtaining proxies to approve the Actions, and in order to effectuate the Actions as early as possible, the Board elected to utilize, and did in fact obtain, the written consent of the holders of a majority of the voting power of the Company. The Company obtained the written consent of its majority stockholders who as of the Record Date owned approximately 80% of the Company’s voting stock. The written consent satisfies the stockholder approval requirement for the Actions. Accordingly, under the DGCL no other Board or stockholder approval is required in order to effect the Actions.
Effective Date
The Actions were unanimously approved by the Board by written consent. Thereafter, the Actions were approved by the Voting Stockholders who hold more than a majority of the voting power of the Company’s outstanding shares of common stock.
This Information Statement is being made available on or about June 27, 2011 to the Company’s stockholders of record as of the Record Date. The Actions will be effective when the Company’s Certificate of Amendment is filed with the Delaware Secretary of State. The Company will not make any filing until on or after July 17, 2011, a date that is more than 20 calendar days after this Information Statement is first sent to our stockholders.
Because each of the Actions is with respect to the amendment of the Company’s Certificate of Incorporation the effective date will be when the Certificate of Amendment is filed with the Delaware Secretary of State (which date may occur later due to administrative issues with respect to the filing requirements or at a time in the discretion of the Board). The time at which the amendment to the Company’s Certificate of Incorporation approved by the stockholders is filed with the Delaware Secretary of State remains in the discretion the Board.
The expenses of distributing this Information Statement will be borne by the Company, including expenses in connection with the preparation and mailing of this Information Statement and all documents that now accompany or may in the future supplement it. The Company contemplates that brokerage houses, custodians, nominees, and fiduciaries will forward this Information Statement to the beneficial owners of the Company’s common stock held of record by these persons and the Company will reimburse them for their reasonable expenses incurred in this process.
Dissenters’ Rights of Appraisal
Under the DGCL, Company stockholders are not entitled to appraisal rights with respect to any of the Actions.
Proposals by Security Holders
No stockholder has requested that we include any additional proposals in this Information Statement.
Record Date and Security Ownership of Certain Beneficial Owners and Management
As of the Record Date the Company had 47,518,739 shares of its common stock issued and outstanding. The following table sets forth the beneficial ownership of the Company’s common stock as of the Record Date by each person who served as a director and/or an executive officer of the Company on that date, the number of shares beneficially owned by all of the Company’s directors and executive officers as a group, and any persons who beneficially own 5% or greater of the Company’s outstanding common stock as of the Record Date. The business address for each of the Company’s officers and directors is 1700 Broadway, Suite 2020, Denver, Colorado 80290.
Name and Address of Beneficial |
| Amount of Beneficial |
| Percent of Class(2) |
|
|
|
|
|
|
|
5% Stockholders |
|
|
|
|
|
|
|
|
|
|
|
Yorktown Energy Partners V, L.P. |
| 17,938,309 |
| 37.8 | % |
|
|
|
|
|
|
Yorktown Energy Partners VI, L.P., |
| 17,938,309 |
| 37.8 | % |
|
|
|
|
|
|
RBCP Energy Fund Investments, LP |
| 8,153,777 |
| 17.2 | % |
Name of |
| Amount of |
| Percent of |
| Options and |
| Total |
| Percent of |
|
|
|
|
|
|
|
|
|
|
|
|
|
Executive Officers and Directors |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Bryan H. Lawrence, |
| 35,876,618 |
| 75.5 | % | — |
| 35,876,618 |
| 75.5 | % |
Peter A. Leidel, |
| 35,876,618 |
| 75.5 | % | — |
| 35,876,618 |
| 75.5 | % |
Paul G. McDermott, |
| 8,153,777 |
| 17.2 | % | 32,616 |
| 8,186,393 |
| 17.2 | % |
David H. Kennedy, |
| 163,076 |
| * |
| 73,384 |
| 236,460 |
| * |
|
Patrick R. McDonald, |
| 1,991,153 |
| 4.2 | % | 2,446,133 |
| 4,437,286 |
| 8.9 | % |
Kevin D. Struzeski, |
| 407,689 |
| * |
| 163,076 |
| 570,765 |
| 1.2 | % |
Mark D. Pierce, |
| 40,769 |
| * |
| — |
| 40,769 |
| * |
|
All directors and executive officers as a group (seven persons) (7) |
| 46,633,082 |
| 98.1 | % | 2,715,209 |
| 49,348,291 |
| 98.2 | % |
* less than 1%
(1) Under Rule 13d-3, a beneficial owner of a security includes any person who, directly or indirectly, through any contract, arrangement, understanding, relationship, or otherwise has or shares: (i) voting power, which includes the power to vote, or to direct the voting of shares; and (ii) investment power, which includes the power to dispose or direct the disposition of shares. Certain shares may be deemed to be beneficially owned by more than one person (if, for example, persons share the power to vote or the power to dispose of the shares). In addition, shares are deemed to be beneficially owned by a person if the person has the right to acquire the shares (for example, upon exercise of an option) within 60 days of the date as of which the information is provided. In computing the percentage ownership of any person, the amount of shares outstanding is deemed to include the amount of shares beneficially owned by such person (and only such person) by reason of these acquisition rights.
(2) Percentages are rounded to the nearest one-tenth of one percent. The percentage of class is based on 47,518,739 shares of common stock issued and outstanding as of the date of this Information Statement.
(3) Includes 17,938,309 shares owned by Yorktown Energy Partners V, LP and 17,938,309 shares owned by Yorktown Energy Partners VI, LP over which Mr. Lawrence and Mr. Leidel have voting and investment power.
(4) Includes 17,938,309 shares owned by Yorktown Energy Partners V, LP and 17,938,309 shares owned by Yorktown Energy Partners VI, LP over which Mr. Leidel and Mr. Lawrence have voting and investment power.
(5) Includes 8,153,777 shares owned by RBCP Energy Fund Investments, LP, over which Mr. McDermott has voting and investment power.
(6) Includes (i) 482,704 shares owned by McDonald Energy, LLC over which Mr. McDonald has voting and investment power, and (ii) stock purchase warrants held by McDonald Energy, LLC exercisable for 2,446,133 shares of common stock.
(7) The shares over which both Mr. Lawrence and Mr. Leidel have voting and investment power are not duplicated for purposes of these calculations.
Change of Control Transactions
On February 14, 2011, the Company closed the January 31, 2011 Agreement and Plan of Merger (the “Merger Agreement”), between (i) the Company and its subsidiary St. Lawrence Merger Sub, Inc. (“Merger Co.”), a Delaware corporation, and (ii) Nytis Exploration (USA) Inc., a Delaware corporation (“Nytis USA”). As a result, Merger Co. was merged with and into Nytis USA, and Nytis USA is a surviving subsidiary of the Company. This transaction is referred to as the “Merger.” The Merger was an all stock-for-stock transaction.
As a result of the Merger, the Company now has 47,518,739 shares of common stock outstanding. Because approximately 99% of the outstanding common shares represent the shares issued by the Company at the closing of the Merger, the Merger has resulted in a change of control of the Company. Pursuant to the terms of the transaction on February 14, 2011, the persons serving as the Company’s executive officers resigned from the executive offices they held with the Company, and the Company appointed new persons to serve as its executive officers. Further, on February 14, 2011 the entire composition of the Board changed as a result of the Merger.
Interested Party Disclosure
The Company believes that its officers, directors or significant stockholders have no direct or indirect interest in the Actions.
DESCRIPTION OF STOCKHOLDER ACTIONS
Each of the Actions is with respect to the proposed amendment to the Company’s Certificate of Incorporation. The Actions are being effected primarily in an effort to allow the Company greater flexibility as it attempts to implement its business plan and anticipated operations.
Based on discussions with financial and legal advisors, the Company believes the Company needs to increase its authorized capital in an attempt to afford the Company greater flexibility to effect future acquisitions and implement its other anticipated operations. The amendment to increase the Company’s authorized capital is intended solely to accomplish these purposes and is not otherwise intended to affect the rights of the Company’s existing stockholders. However, if in the future we issue additional shares, stockholders may incur dilution.
To implement the Actions the Company expects to file its Certificate of Amendment.
The amendment to the Company’s Certificate of Incorporation approved by Voting Stockholders is described below.
A. Increase in Authorized Capitalization and Elimination of Class A Common Stock
There are currently (i) 100,000,000 shares of common stock and (ii) 1,000,000 shares of preferred stock authorized. The Certificate of Amendment will increase our authorized common stock to 200,000,000 shares.
Common Stock
The Voting Stockholders voted to increase the number of shares of the Company’s $0.01 par value common stock from 100,000,000 shares to 200,000,000 shares. The Company desires to have shares of its common stock available for future strategic transactions to acquire or to finance the future acquisition of oil and gas assets and interests. The Company does not believe that it has sufficient shares of common stock available to accomplish its near or long term business objectives. Consequently, the Board recommended and the Voting Stockholders approved an increase in the number of shares of common stock we are authorized to issue to 200,000,000. We anticipate that this will give us:
• | Significant flexibility for future financing transactions by making a sufficient number of shares of authorized capital available for general corporate purposes, such as equity based compensation; and |
|
|
• | Significant flexibility to utilize our common stock to help effect any strategic transaction, such as the acquisition of assets or other business operations. |
Subject to preferences that may be applicable to any preferred stock outstanding at the time (no preferred stock is currently issued and outstanding), the holders of outstanding shares of common stock are entitled to receive dividends from assets legally available at such times and in such amounts as the Board may from time to time determine.
Each holder of common stock is entitled to one vote for each share of common stock held on all matters submitted to a vote of stockholders. Cumulative voting for the election of directors is not required by Delaware law and is not provided for in the Company’s Certificate of Incorporation.
The common stock is not entitled to preemptive rights and is not subject to conversion or redemption. Upon the Company’s liquidation, dissolution or winding up, the remaining assets legally available for distribution to stockholders, after payment of claims of creditors and payment of liquidation preferences, if any, on outstanding preferred stock, are distributable ratably among the holders of the common stock and any participating preferred stock outstanding at that time.
Anti-Takeover Effects
The increase in our authorized capital and any future issuance of preferred stock may have the effect of delaying, deferring or preventing a change in our control without further action by our stockholders and may adversely affect the voting and other rights of the holders of our common stock. The issuance of shares of preferred stock, or the issuance of rights to purchase such shares, could be used to discourage an unsolicited acquisition proposal. For instance, the issuance of common stock or a series of preferred stock might impede a business combination by including class voting rights that would
enable a holder to block such a transaction. In addition, under certain circumstances, the issuance of preferred stock could adversely affect the voting power of holders of our common stock. Although our Board is required to make any determination to issue preferred stock based on its judgment as to the best interests of our stockholders, our Board could act in a manner that would discourage an acquisition attempt or other transaction that some, or a majority, of our stockholders might believe to be in their best interests or in which such stockholders might receive a premium for their stock over the then market price of such stock. Further, the increase in our authorized capital is being effected for the reasons stated above and is not the result of management’s knowledge of an effort to accumulate the issuer’s securities or to obtain control of the issuer by means of a merger, tender offer, solicitation or otherwise.
Except for the possibility of the future issuance of shares of common stock and/or preferred stock, neither the Company’s Certificate of Incorporation nor its Bylaws presently contain any provisions having anti-takeover effects and this proposal is not a plan by management to adopt a series of amendments to the Company’s Certificate of Incorporation or Bylaws to institute an anti-takeover provision. The Company does not have any plans or proposals to adopt other provisions or enter into other arrangements that may have material anti-takeover consequences.
ADDITIONAL INFORMATION
Information Available
The Company is subject to the information and reporting requirements of the Exchange Act and in accordance with the Exchange Act, the Company files periodic reports, documents and other information with the SEC relating to its business, financial statements and other matters, including the Company’s annual report on Form 10-K for the year ended March 31, 2010, its quarterly report on Form 10-Q for the quarter ended March 31, 2011, and any reports prior to or subsequent to that date.
These reports and other information filed with the SEC by the Company may be inspected and are available for copying at the public reference facilities maintained at the Securities and Exchange Commission at 100 F Street NW, Washington, D.C. 20549.
The Company’s filings with the Securities and Exchange Commission are also available to the public from the SEC’s website, http://www.sec.gov. The Company’s Annual Report on Form 10-K for the year ended March 31, 2010, and other reports filed under the Securities Exchange Act of 1934, are also available to any stockholder at no cost upon request to: President, Carbon Natural Gas Company, 1700 Broadway, Suite 2020, Denver, CO 80290, (720) 407-7043.
Delivery Of Documents To Security Holders Sharing An Address
If hard copies of the materials are requested, we will send only one Information Statement and other corporate mailings to stockholders who share a single address unless we receive contrary instructions from any stockholder at that address. This practice, known as “householding,” is designed to reduce our printing and postage costs. However, the Company will deliver promptly upon written or oral request a separate copy of the Information Statement to a stockholder at a shared address to which a single copy of the Information Statement was delivered. You may make such a written or oral request by (a) sending a written notification stating (i) your name, (ii) your shared address and (iii) the address to which the Company should direct the additional copy of the Information Statement, to the Company at Chief Executive Officer, Carbon Natural Gas Company, 1700 Broadway, Suite 2020, Denver, CO 80290, (720) 407-7043.
If multiple stockholders sharing an address have received one copy of this Information Statement or any other corporate mailing and would prefer the Company to mail each stockholder a separate copy of future mailings, you may send notification to or call the Company’s principal executive offices. Additionally, if current stockholders with a shared address received multiple copies of this Information Statement or other corporate mailings and would prefer the Company to mail one copy of future mailings to stockholders at the shared address, notification of such request may also be made by mail or telephone to the Company’s principal executive offices.
By Order of the Board of Directors |
|
|
|
/s/ Patrick R. McDonald |
|
Patrick R. McDonald, President, Chief Executive Officer and Director | |
EXHIBIT A
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
OF
CARBON NATURAL GAS COMPANY
This Certificate of Amendment to the Certificate of Incorporation of Carbon Natural Gas Company (the “Corporation”), a corporation organized and existing under the laws of the State of Delaware, is hereby duly adopted pursuant to and in accordance with the provisions of Section 242 of the Delaware General Corporation Law.
1. Section 4.1 of Article 4 of the Certificate of Incorporation of Carbon Natural Gas Company is hereby deleted and replaced in its entirety by the following:
“4.1 Authorized Shares. The total number of shares of stock that the Corporation shall have authority to issue is Two Hundred One Million (201,000,000) shares, consisting of (i) Two Hundred Million (200,000,000) shares of common stock, each with par value of $0.01 (the “Common Stock”) and (ii) One Million (1,000,000) shares of preferred stock, each with par value of $0.01 (the “Preferred Stock”).”
2. This Certificate of Amendment shall have a delayed effective date of , 2011.
IN WITNESS WHEREOF, the undersigned authorized officer of the Corporation, for the purpose of amending the Certificate of Incorporation pursuant to the Delaware General Corporation Law, does hereby make and file this Certificate of Amendment, hereby declaring and certifying that the facts herein stated are true, and accordingly has hereunto set his hand this day of , 2011.
|
|
| Kevin D. Struzeski, |
| Secretary and Treasurer |
