Proxy Statement Pursuant to Section 14(a)
of the Securities Exchange Act of 1934
File by the Registrant [XX]
Filed by a Party other than the Registrant [ ]
Check the appropriate box:
[XX] Preliminary Proxy Statement [ ] Confidential, for use of the Commission
[ ] Definitive Proxy Statement only (as permitted by Rule 14a-6(e)(2))
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to Rule 14a-12
ASPEN EXPLORATION CORPORATION
-----------------------------
(Name of Registrant as Specified In Its Charter)
----------------------------------------------------------
(Name of Person(s) Filing Proxy Statement if Other Than the Registrant)
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[XX] No fee required.
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Rule O-11(a)(2) and identify the filing for which the offsetting fee was
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number, or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid:
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(4) Date Filed:
ASPEN EXPLORATION CORPORATION
2050 South Oneida Street, Suite 208
Denver, CO 80224
- --------------------------------------------------------------------------------
October 9, 2009
Dear Stockholders:
You are cordially invited to attend the Annual Meeting of Stockholders of
Aspen Exploration Corporation ("Aspen") on November 20, 2009, at ______, local
time, at _____________________________ (the "Annual Meeting") to consider
various proposals. Proposal number one is for the approval of the election of
four directors to serve in the class so designated until their successors have
been elected and qualified. The Board of Directors recommends that all
stockholders vote for each of the persons nominated by the Board of Directors.
Proposal number two is for the approval of a resolution granting Aspen's
Board of Directors the authority, in its discretion, to dissolve the Company.
The Board of Directors did not agree with respect to whether the Board should
recommend that stockholders vote for, against, or abstain with respect to
Proposal number two. One member recommends that stockholders vote against this
resolution; and three members of the Board of Directors have agreed to forward
the resolution to the stockholders for consideration without making a
recommendation. The reasons that each member of our Board of Directors came to
their recommendation or did not make a recommendation either for or against the
proposal are described in the Proxy Statement.
Whether or not you are able to attend the Annual Meeting in person, it is
important that your shares be represented. We have provided instructions on how
you may vote your shares in the Notice of Internet Availability of Proxy
Materials and in this Proxy Statement. Please vote as soon as possible. You may,
of course, attend the Annual Meeting and vote in person even if you have
previously submitted voting instructions for your shares. It is very important
that every stockholder vote.
Your support of each proposal is very important to the future success of
your Company.
Sincerely yours,
R.V. Bailey, Chief Executive Officer
ASPEN EXPLORATION CORPORATION
2050 South Oneida Street, Suite 208
Denver, CO 80224
- --------------------------------------------------------------------------------
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
To Be Held on November 20, 2009
- --------------------------------------------------------------------------------
October 9, 2009
TO THE STOCKHOLDERS OF ASPEN EXPLORATION CORPORATION:
The Annual Meeting of Stockholders of ASPEN EXPLORATION CORPORATION, a
Delaware corporation, ("We" or "Aspen") will be held on November 20, 2009
at_______, local time, at __________________ (the "Annual Meeting"), to consider
and take action on:
1. The election of four directors to serve in the class so designated
until reelected at an annual meeting of stockholders and until their
successors have been elected and qualified.
2. Consideration of a resolution granting Aspen's Board of Directors the
authority to dissolve the Company. The Board must exercise that
authority on or before December 31, 2010 or the authority to dissolve
will be revoked. The Board may exercise or fail to exercise the
authority to dissolve the Company in its discretion.
3. Such other business as may properly come before the Annual Meeting, or
any adjournments, or postponements thereof.
The discussion of the proposals set forth above is intended only as a
summary and is qualified in its entirety by the information contained in the
accompanying Proxy Statement. Only holders of record of our common stock on
October 2, 2009 ("the Record Date"), will be entitled to notice of and to vote
at this Annual Meeting, and any postponements or adjournments thereof.
STOCKHOLDERS ARE CORDIALLY INVITED TO ATTEND THE MEETING IN PERSON AND THE
MANAGEMENT OF THE COMPANY HOPES THAT YOU WILL FIND IT CONVENIENT TO ATTEND.
Stockholders, whether or not they expect to be present at the Annual
Meeting, are encouraged to vote their shares on the internet as instructed in
the Notice of Internet Availability of Proxy Materials, or if the Proxy
Materials were mailed to you, you may instead complete, sign, date and return
the enclosed proxy card. Any person giving a proxy has the power to revoke it at
any time by following the instructions provided in the Proxy Statement.
By Order of the Board of Directors:
R.V. Bailey, Chief Executive Officer
PLEASE DATE, SIGN AND PROMPTLY RETURN YOUR PROXY SO THAT YOUR SHARES MAY BE
VOTED IN ACCORDANCE WITH YOUR WISHES. THE GIVING OF SUCH PROXY DOES NOT AFFECT
YOUR RIGHT TO VOTE IN PERSON IF YOU ATTEND THE ANNUAL MEETING.
YOUR VOTE IS IMPORTANT
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ASPEN EXPLORATION CORPORATION
2050 South Oneida Street, Suite 208
Denver, CO 80224
- --------------------------------------------------------------------------------
PROXY STATEMENT
FOR THE ANNUAL MEETING OF STOCKHOLDERS
To Be Held on November 20, 2009
- --------------------------------------------------------------------------------
October 9, 2009
We are furnishing this Proxy Statement to stockholders of ASPEN EXPLORATION
CORPORATION ("We" or "Aspen" or the "Company") in connection with the
solicitation of proxies by and on behalf of our board of directors ("Board of
Directors" or the "Board") for use at our Annual Meeting of Stockholders (the
"Annual Meeting") and at any adjournments or postponements thereof. We will hold
the Annual Meeting on November 20, 2009, at______, at _________________________.
The Annual Meeting is being held for the purposes set forth in the
accompanying Notice of Annual Meeting of Shareholders. This proxy statement
(including the Notice of Annual Meeting of Stockholders) and the Company's
Annual Report on Form 10-K for the fiscal year ended June 30, 2009 ("Annual
Report"), including financial statements (collectively the "Proxy Materials")
are first being provided to shareholders beginning on or about October 9, 2009.
A notice of the Internet Availability of the Proxy Materials ("Notice") will be
mailed to certain shareholders on or about October 9, 2009. If you received a
Notice by mail, you will not receive a printed copy of the Proxy Materials.
Instead, the Notice will instruct you as to how you may access and review all of
the information contained in the Proxy Materials. The Notice will also instruct
you as to how you may submit your proxy on the Internet. If you would like to
receive a printed copy of our Proxy Materials and proxy card, and have not
previously requested a paper copy of these materials, you should follow the
instructions for requesting such materials included in the Notice.
VOTING SECURITIES
Holders of record of our common stock at the close of business on October
2, 2009 (the "Record Date") will be entitled to vote on all matters. On the
Record Date, we had 7,259,622 shares of common stock issued and outstanding. The
holders of shares of our common stock are each entitled to one vote per share.
Our voting securities include only our outstanding common stock. (When used
herein, the word "you" refers to our stockholders.)
For the transaction of business at the Annual Meeting a quorum must be
present. A quorum consists of a majority of the shares entitled to vote at the
meeting. For Proposal No. 1, the four nominees for our Board of Directors
receiving the greatest number of affirmative votes cast will be elected to serve
on the Board of Directors. Proposal No. 2 must be approved by a majority of
shares outstanding and entitled to vote thereon. Cumulative voting shall not be
allowed in the election of directors or for any other purpose.
Abstentions and broker non-votes will be counted as present for purposes of
determining the existence of a quorum. Abstentions and broker non-votes will not
be counted for the purposes of determining the outcome of the vote on the
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election of directors or on Proposal No. 2 although (because of the requirement
for approval by a majority of the shares outstanding) a broker non-vote or an
abstention will have the effect of a vote against the proposal. A "broker
non-vote" occurs when a broker is not permitted to vote because the broker does
not have specific voting instructions from the beneficial owner of the shares or
for other reasons.
We will bear the cost of soliciting proxies. In addition, we may reimburse
brokerage firms and other persons representing beneficial owners of shares for
their expenses in forwarding solicitation materials to beneficial owners.
Certain of our officers, directors and regular employees may solicit proxies
personally or by telephone or facsimile. We will not pay any officer, director,
or employee additional compensation for doing so. We do not currently intend to
retain a professional solicitor to assist in the solicitation of proxies.
We may, in our discretion, seek an adjournment of the Annual Meeting to a
specific time and place if a quorum is not present.
The proposed corporate actions on which the stockholders are being asked to
vote are not corporate actions for which stockholders of a Delaware corporation
have the right to dissent under the Delaware General Corporation Law (the
"DGCL").
In accordance with the rules and regulations of the Securities and Exchange
Commission (the "SEC"), instead of mailing a printed copy of our Proxy Materials
and proxy card to each stockholder of record, the Company will furnish Proxy
Materials to our shareholders on the Internet. If you received a Notice by mail,
you will not receive a printed copy of the Proxy Materials. Instead, the Notice
will instruct you as to how you may access and review all of the information
contained in the Proxy Materials. The Notice will also instruct you as to how
you may submit your proxy on the Internet. If you would like to receive a
printed copy of our Proxy Materials and proxy card, and have not previously
requested a paper copy of these materials, you should follow the instructions
for requesting such materials included in the Notice.
If you are a stockholder of record, you may vote in person at the Annual
Meeting. We will give you a ballot when you arrive. If you do not wish to vote
in person or you will not be attending the Annual Meeting, you may vote by
proxy. If you received a printed copy of these Proxy Materials by mail, you may
vote by proxy using the enclosed proxy card or vote by proxy on the Internet. If
you received a Notice by mail, you may vote by proxy over the Internet. The
procedures for voting by proxy are as follows:
o To vote by proxy on the Internet, go to [____________________] to
complete an electronic proxy card.
o To vote by proxy using the enclosed proxy card (if you received a
printed copy of these Proxy Materials by mail), complete, sign and
date your proxy card and return it promptly in the envelope provided.
The giving of the enclosed proxy does not preclude the right to vote
in person should the shareholder giving the proxy so desire. A proxy
may be revoked at any time prior to its exercise by (i) providing
notice in writing to the Company that the proxy is revoked; (ii)
presenting to the Company a later-dated proxy; or (iii) attending the
Annual Meeting and voting in person.
We provide Internet proxy voting to you as a stockholder to vote your
shares on-line. The Internet proxy voting procedures have been designed to
ensure the authenticity and correctness of your proxy vote instructions.
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However, please be aware that you must bear any costs associated with your
Internet access, such as usage charges from Internet access providers and
telephone companies.
If you vote by proxy, your vote must be received by 11:59 p.m. Eastern Time
on November 19, 2009 to be counted. Shares of the Common Stock represented by
all properly executed proxies received will be voted as specified in the proxy.
If you give us a proxy, you may revoke the proxy at any time before it is
voted. You may do so:
o By giving notice to our corporate Secretary of your revocation; or
o By filing another proxy with our corporate Secretary; or
o By attending the Meeting and voting in person.
The address of our corporate secretary is 2050 S. Oneida, Suite 208,
Denver, CO 80224. We will ensure that all properly executed and unrevoked
proxies received in time are voted in accordance with the instructions of the
beneficial owners.
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QUESTIONS AND ANSWERS ABOUT THIS PROXY STATEMENT
The following responses to certain questions does not purport to be a
complete statement of the information in this Proxy Statement, and are qualified
by the more complete information set forth hereinafter.
1. When and where will the Annual Meeting be held?
As described in the notice, we will hold the Annual Meeting at
_____________________. The Annual Meeting is scheduled for November 20, 2009
at_______, local time. If you expect to attend the Annual Meeting in person,
please call Aspen at (303) 639-9860 to ensure that sufficient accommodations are
prepared.
2. Why is the Annual Meeting being held?
The Annual Meeting is being held for the following purposes that are more
completely described elsewhere in this Proxy Statement (collectively, the
"Proposals"):
Proposal No. 1 asks our stockholders to approve the election of four
directors into three classes to serve until re-elected at an annual meeting
of stockholders attributable to their class, and until their successors
have been elected and qualified.
Proposal No. 2 asks our stockholders to grant the Board of Directors the
authority to dissolve the Company. The Board must exercise that authority
on or before December 31, 2010 or the authority to dissolve will be
revoked. The Board may exercise the authority to dissolve in its
discretion.
3. Who is asking for my vote?
The Board of Directors is sending or providing this Proxy Statement, the
attached Notice of Annual Meeting of Stockholders, the Notice of Internet
Availability of Proxy Materials, and a proxy card to you and all other persons
who are stockholders of record of Aspen as of the close of business on October
2, 2009 (the "Record Date"). The Board of Directors is soliciting your vote for
our Annual Meeting.
4. Who is eligible to vote?
Stockholders of record who own shares of our common stock at the close of
business on the Record Date are eligible to vote. Each share of common stock is
entitled to one vote.
5. Might the Annual Meeting be adjourned?
We do not currently intend to seek adjournment of the Annual Meeting.
However, if we have insufficient votes to meet a quorum (which requires the
presence of at least a majority of the outstanding shares), we may consider
adjourning the Annual Meeting to a specific time and place. Unless the Board of
Directors fixes a new record date, stockholders of record for an adjourned
meeting shall be as originally determined for the meeting from which the
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adjournment was taken. If the adjournment is for more than 30 days, or if after
the adjournment, a new record date is fixed for the adjourned meeting, a notice
of the adjourned meeting shall be given to each stockholder of record entitled
to vote. At the adjourned meeting any business may be transacted that might have
been transacted at the meeting as originally called.
6. Why did you provide me this booklet?
This booklet is a Proxy Statement. It provides you with information you
should review before voting on the Proposals listed above and in the Notice of
Annual Meeting of Stockholders. We have also made our 2009 Annual Report on Form
10-K available to our stockholders. These proxy materials are being provided
because you have the right to vote on these important Proposals concerning your
investment in Aspen. Such proxy materials are also available on-line at
www.__________________.
7. How do I vote?
Stockholders may vote by visiting www.___________________ and utilizing the
instructions provided on the Notice. Alternatively stockholders who received the
hard copies of the Proxy Materials from Aspen may vote by completing, signing,
and returning the enclosed proxy card promptly in the enclosed envelope or by
attending the Annual Meeting in person and voting.
Joint owners must each sign the proxy card.
If you own your shares through a broker-dealer or other nominee, you must
vote your shares as instructed by that broker-dealer or other nominee. If you
own your shares through a broker-dealer or other nominee, you are not considered
to be a stockholder of record, and you will not be permitted to vote your shares
in person at the Annual Meeting, unless you have obtained a proxy for those
shares from the person who holds your shares of record.
If a stockholder wishes to participate in the Annual Meeting but does not
wish to give a proxy, the stockholder may attend and vote at the Annual Meeting
in person. Should you require additional information regarding the Annual
Meeting, please contact Aspen at (303) 639-9860.
8. Why does my name not appear as a stockholder of record?
Many investors own their investment shares through a broker-dealer or other
nominee. Broker-dealers frequently clear their transactions through other
broker-dealers and may hold the actual certificates for shares in the name of
securities depositories, such as CEDE & Co. (operated by Depository Trust
Company of New York City). In such a case, only the ultimate certificate holder
appears on our records as a stockholder even though that nominee may not have
any economic interest in the shares that you actually own through your
broker-dealer. You should contact your broker-dealer for more information about
this process. You have the right to request that your broker-dealer deliver to
you a certificate representing your shares.
9. How does the Board recommend that I vote with respect to the election of
directors?
The Board of Directors recommends that stockholders vote FOR each of the
nominees named in this Proxy Statement.
8
10. Why is the Board of Directors submitting a proposal to the stockholders to
grant the Board authority to dissolve Aspen?
In connection with preparing for and conducting the May 22, 2009 meeting of
stockholders, one stockholder submitted a request that Aspen include a
dissolution proposal to be considered at the same time that the stockholders
were being asked to consider the sale of Aspen's oil and gas assets to Venoco,
Inc. The Board of Directors had previously considered that possibility, but had
determined that presenting the dissolution proposal at the same time as the
asset sale proposal would add a significant amount of complexity and risk
stockholder consideration of the asset sale. Consequently, Aspen advised the
stockholder that Aspen would offer stockholders the opportunity to consider
dissolution of Aspen at the next meeting. In response to that statement, the
stockholder withdrew his proposal and the Securities and Exchange Commission was
able to complete its review of the proxy statement for the May 22, 2009 meeting.
11. How does the Board recommend that I vote with respect to the proposal that
would grant the Board of Directors the discretion to dissolve Aspen?
The Board of Directors proposed dissolution of Aspen for consideration of
its stockholders because of commitments made in March 2009. The Board, however,
has not determined by majority vote what recommendation should be made to
stockholders in connection with the vote:
o One director, R.V. Bailey, believes that the prospective value of
Aspen as a public corporation with a continuous filing record and
clean financial statements exceeds the value of the remaining net
assets, and believes that stockholders may benefit by the possibility
of making a business acquisition (including a reverse takeover) that
could offer Aspen's stockholders potential long term value.
o Three directors, Robert A. Cohan, Kevan B. Hensman and Douglas P.
Imperato are continuing to evaluate whether they believe the Company
can identify and execute on a business opportunity that may offer long
term value to the Company's stockholders and as such neither
authorized the Board to make a recommendation for or against approval
of Proposal No. 2.
Although the Board did not determine whether dissolution is in Aspen's best
interests at the present time, the Board did determine it is appropriate to
submit the proposal to its stockholders at the Annual Meeting. As such the
proposal is being submitted to the stockholders without any recommendation from
the Board of Directors. For further discussion on this issue see page 30 of this
Proxy Statement.
12. How can I obtain more information about Aspen?
We have included an annual report to stockholders with this Proxy Statement
that contains additional information about Aspen. Further, this Proxy Statement
and the annual report are available on-line at www._______________. In addition,
information is available on our website at www.aspenexploration.com and through
EDGAR, electronic filings maintained by the Securities and Exchange Commission
at www.sec.gov.
13. If Proposal No. 2 is approved, does Aspen have immediate plans to dissolve
the Company?
Even if the stockholders approve Proposal No. 2, actual dissolution of
Aspen would require further action by Aspen's Board of Directors, and any such
action would be based on their business judgment based on the circumstances as
they may exist in the future. If Aspen is unable to identify an appropriate
9
business opportunity or transaction to complete, the Board will likely act to
dissolve Aspen. If Aspen does identify a business opportunity or transaction
that a majority of the Board determines is worth completing, the Board will
likely allow the authority to dissolve to expire. Even if Proposal No. 2 is
approved, the Board's authority to dissolve Aspen will expire December 31, 2010
unless a certificate of dissolution has been filed with the Delaware Secretary
of State before that date.
14. If Aspen might be dissolved why are the stockholders being asked to
re-elect directors at the Meeting?
If the stockholders approve Proposal No. 2 the Company does not intend to
immediately dissolve. Instead, Aspen intends to continue to explore potential
business opportunities and transactions, and the Board of Directors elected at
this meeting will determine the advisability of any potential business
opportunities and transactions versus the benefits of dissolution. Even if Aspen
does dissolve, the dissolution process requires the Company to continue for a
period of time to resolve matters such as current or potential legal disputes,
the disposition of property, and to collect and/or settle debt obligations. As
such it would be necessary for the process to be overseen by management and the
Board of Directors.
15. If Aspen's Board of Directors decides to dissolve the Company, what happens
next?
We will:
a. file a certificate of dissolution with the Delaware Secretary of
State;
b. adopt a plan of liquidation by Board action in compliance with
Delaware law;
c. conclude our negotiations with creditors and pay or adequately provide
for the payment of the Company's liabilities;
d. distribute any remaining proceeds to the public stockholders, less any
income or other tax obligations relating to the income from the
Company's assets; and
e. otherwise effectuate the Plan of Liquidation.
16. If the Company is dissolved, will I be entitled to any distributions?
Probably, however the amount of any distributions(s) will depend on a
number of factors, including, but not limited to, the accounts payable and our
other liabilities existing on the date of the approval and adoption of the plan
of liquidation, our operating expenses that accrue following approval and
adoption of the plan of liquidation and the amount of any claims that may be
asserted against us. The expenses of our operations will include professional
fees and other expenses of liquidation and could be substantial. The
distribution stockholders may receive as part of the dissolution would be
separate from the distribution the Company plans to pay from the net, after-tax
proceeds from the sale of our California assets (expected to be paid in or about
December 2009) and any dissolution distribution likely would be paid to
stockholders of record on the date we file the certificate of dissolution with
the Delaware Secretary of State sometime after such filing takes place.
17. If the Company is dissolved and distributions are made, would the
distribution be taxable?
In general, if the Company is dissolved, our stockholders will recognize
gain or loss based on the difference between the aggregate value of
distributions to such stockholders and such stockholder's tax basis in the
common stock (See "Proposal No. 2: Approval to Grant the Board of Directors the
Authority to Dissolve the Company --"Material U.S. Federal Income Tax
Consequences of the Plan of Liquidation" beginning on page 34 of this Proxy
Statement).
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If the Company is not dissolved and we decide to pay a cash dividend to our
stockholders, the stockholders will have taxable dividend income to the extent
of the stockholders' share of our current and accumulated earnings and profits.
We anticipate that any amount distributed in excess of our current and
accumulated earnings and profits will be treated as capital gain from the sale
of our stock.
18. Does the dissolution of the Company involve any risk of liability to our
stockholders?
If the Company is dissolved, we are obligated to pay, or make provision for
the payment of, our expenses and our fixed and contingent liabilities. Under
Delaware law, if we fail to make adequate provision for the payment of our
expenses and liabilities a stockholder could be held personally liable to any
remaining creditors for any deficiency to the extent of such stockholder's
previous distributions from us in liquidation. If a stockholder has paid taxes
on distributions previously received by the stockholder, a repayment of all or a
portion of the prior distribution could result in a stockholder incurring a net
tax cost if the stockholder's repayment of an amount previously distributed does
not cause a commensurate reduction in taxes payable by that stockholder. If we
fail to create an adequate contingency reserve for payment of our expenses and
liabilities, each of our stockholders could be held liable for payment to our
creditors for amounts owed to creditors in excess of the contingency reserve, up
to the amount actually distributed to such stockholder.
FORWARD LOOKING STATEMENTS
Because we want to provide you with more meaningful and useful information,
this Proxy Statement contains certain "forward-looking statements" (as such term
is defined in Section 21E of the Securities Exchange Act of 1934, as amended).
These statements reflect our current expectations regarding our possible future
results of operations, performance, and achievements. These forward-looking
statements are made pursuant to the safe harbor provisions of the Private
Securities Litigation Reform Act of 1995, regulation of the Securities and
Exchange Commission, and common law.
Wherever possible, we have tried to identify these forward-looking
statements by using words such as "anticipate," "believe," "estimate," "expect,"
"plan," "intend," and similar expressions. These statements reflect our current
beliefs and are based on information currently available to us. Accordingly,
these statements are subject to certain risks, uncertainties, and contingencies,
which could cause our actual results, performance, or achievements to differ
materially from those expressed in, or implied by, such statements. These risks,
uncertainties and contingencies include, without limitation, the factors set
forth under "Item 1A Risk Factors" of our Form 10-K for the fiscal year ending
June 30, 2009 and in documents that we subsequently filed. We have no obligation
to update or revise any such forward-looking statements that may be made to
reflect events or circumstances after the date of this Proxy Statement.
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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The number of shares outstanding of the Company's common stock at the
Record Date, was 7,259,622. The following table sets forth the beneficial
ownership of the Company's common stock as of the Record Date by each director
and each executive officer of the Company and by all directors and executive
officers as a group.
Name and Address of Amount and Nature of Percent of
Beneficial Owner Position Beneficial Ownership Common Stock
---------------- -------- -------------------- ------------
R.V. Bailey Chief Executive 1,391,336(i) 19.17%
2050 S. Oneida St. Officer and Director
Suite 208
Denver, CO 80224
Robert A. Cohan President and 692,737(ii) 10.23%
2050 S. Oneida St. Director
Suite 208
Denver, CO 80224
Kevan B. Hensman Chief Financial 28,120(iii) *
2050 S. Oneida St. Officer and Director
Suite 208
Denver, CO 80224
Douglas P. Imperato Director 7,530(iv) *
2050 S. Oneida St.
Suite 208
Denver, CO 80224
All current directors and 2,119,723(v) 30%
executive officers as a
group (four persons)
* Ownership of less than one percent.
i This number includes 1,241,776 shares of stock held of record in the name
of R. V. Bailey, and 16,320 shares of record in the name of Mieko Nakamura
Bailey, his spouse. Additionally, the number includes 32,000 shares of
common stock Aspen issued to the Aspen Exploration Profit Sharing Plan for
the benefit of R. V. Bailey as a corporation contribution to Mr. Bailey's
401(k) account. The number of shares beneficially owned also includes
options to purchase 101,240 shares of common stock. However, the number of
shares does not include options to purchase 66,667 shares that have not yet
vested and will not vest until on or after September 30, 2009, to the
extent earned.
ii This number includes 527,644, shares of common stock. Additionally, Aspen
issued 30,733 shares of common stock to the Aspen Exploration Profit
Sharing Plan for the benefit of Robert A. Cohan as a corporation
contribution to Mr. Cohan's 401(k) account. The total number of shares
beneficially owned by Mr. Cohan also includes options to purchase 134,360
shares of common stock. However, the number of shares does not include
stock options to purchase 100,000 shares that have not yet vested and will
not vest until on September 30, 2010, to the extent earned.
12
iii On September 11, 2006, upon being appointed to our board of directors, Mr.
Hensman was granted an option to purchase 10,000 shares of our common stock
at $3.70 per share. These options vested immediately upon grant and are
exercisable through September 11, 2011. Mr. Hensman also owns options
exercisable to acquire 18,120 shares included in the above table. The table
does not include options to acquire 33,333 shares, which will not vest
until on September 30, 2010, to the extent earned.
iv Includes 3,000 shares of common stock. Also includes options to acquire
4,530 shares of common stock exercisable at $2.14 per share. Does not
include options to acquire 8,333 shares that do not vest until on September
30, 2010, to the extent earned.
Security Ownership of Certain Beneficial Owners
The following table sets forth the beneficial ownership of the Company's
Common Stock as of the Record Date by each person (other than the directors and
executive officers of the Company) was known to own beneficially, more than 5%
of the outstanding voting shares of Common Stock based solely on filings made by
such persons.
Name and Address of Amount and Nature of Percent of
Beneficial Owner Beneficial Ownership Common stock
---------------- -------------------- ------------
Tymothi Tombar
2713 Crawford Street 421,929(i) 5.8%
Houston, Texas 77004
John Gibbs and Susan Gibbs
P.O. Box 859
Ardmore, OK 73402 471,400(ii) 6.5%+
(i) Based solely on a Schedule 13D filed by Mr. Tombar on July 30, 2009 which
has not been amended.
(ii) Based solely on a Schedule 13G/A filed by TriPower Resources, LLC, an
Oklahoma limited liability company, successor by conversion to TriPower
Resources, Inc., and John and Susan Gibbs on February 12, 2009 which has
not been amended.
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PROPOSAL ONE
ELECTION OF DIRECTORS
The following persons are nominated to serve as directors of Aspen in the
class so designated for a term of one to three years depending upon which class
each is appointed to serve, and until the election and qualification of their
successors:
Class Nominee(s)
- ----- ----------
Class I, for a term expiring at the annual meeting to Douglas P. Imperato
be held during the fiscal year ending June 30, 2010
Class II, for a term expiring at the annual meeting Kevan B. Hensman
to be held during the fiscal year ending June 30, 2011
Class III, for a term expiring at the annual meeting R.V. Bailey and
to be held during the fiscal year ending June 30, 2012 Robert A. Cohan
Our certificate of incorporation divides our Board of Directors into three
classes which, under Delaware law, must be as nearly equal in number as
possible. The members of each class are elected for three-year terms at each
successive annual meeting of stockholders and unless that director is removed or
resigns, serve until reelected at the next annual meeting of stockholders at
which that director is standing for reelection. Because we have not held an
annual meeting of stockholders since 1994, all of our directors are standing for
reelection at the Annual Meeting and if elected shall serve in the class and for
the term designated above.
These persons will constitute the entire board of directors. The person
named in the proxy intends to vote for these four nominees, each of whom has
been recommended for election by the Board of Directors of Aspen, unless a
stockholder withholds authority to vote for any or all of the nominees. The four
nominees receiving the greatest number of affirmative votes will be elected as
directors. If any nominee is unable to serve or, for good cause, will not serve,
the person named in the proxy reserves the right to substitute another person of
his choice as nominee in his place. Each of the nominees has agreed to serve, if
elected.
Identification of Directors and Executive Officers
The following table sets forth the names and ages of all the Directors and
Executive Officers of Aspen, and the positions held by each such person as of
the Record Date. As described above, Aspen's certificate of incorporation
divides the Board of Directors into three classes which, under Delaware law,
must be as nearly equal in number as possible. Under Aspen's Restated
Certificate of Incorporation, members of each class are elected for three-year
terms at each successive meeting of stockholders and serve until their
successors are duly elected and qualified; officers are appointed by, and serve
at the pleasure of, the Board of Directors. Since we have not held an annual
meeting since February 25, 1994, each of the directors is standing for
reelection at the Annual Meeting.
14
Name Age Position Director Since
- ---- --- -------- --------------
R. V. Bailey 76 Chief Executive Officer, 1980
Vice President,
Secretary, Director, and
Board Chairman
Robert A. Cohan 52 President and Director 1998
Chief Financial Officer, 2006
Kevan B. Hensman 53 Vice President and
Director
Douglas P. Imperato 51 Director 2008
* As described above the class each director belongs to corresponds to when
such director is up for reelection.
+ Under Aspen's Restated Certificate of Incorporation, if any newly created
directorships are filled by the Board of Directors, such additional
directors shall not be classified until the next annual meeting of
stockholders and such directorships shall be apportioned among the three
classes of directors at the next annual meeting of stockholders so as to
make all such classes nearly equal in number as possible. Since we have not
held an annual meeting of stockholders since 1994, all directors are
standing for reelection and class designation.
No arrangement exists between any of the above officers and directors
pursuant to which any of those persons was elected to such office or position.
None of the directors are also directors of other companies filing reports under
the Securities Exchange Act of 1934.
Robert A. Cohan. Mr. Cohan currently serves as our President and as a
director. He served as our chief executive officer and chief financial officer
until January 2008 when he suffered a stroke and he has not been able to resume
full-time duties since then. Mr. Cohan obtained a Bachelor of Science degree in
Geology from the State University College at Oneonta, NY in 1979. He has
approximately 28 years experience in oil and gas exploration and development,
including employment in Denver, CO with Western Geophysical, H. K. van Poollen &
Assoc., Inc., as a Reservoir Engineer and Geologist, Universal Oil & Gas, and as
a principal of Rio Oil Co., Denver, CO. Mr. Cohan served as Manager, Oil & Gas
Operations, Aspen Exploration Corporation, Denver, CO from 1989 to 1992. He was
employed as Vice President, Oil & Gas Operations, for Tri-Valley Oil & Gas Co.,
Bakersfield, CA. from 1992 to April 1995, at which time Mr. Cohan rejoined Aspen
Exploration Corporation as Vice President West Coast Division (now President),
opening an office in Bakersfield, CA. He is a member of the Society of Petroleum
Engineers (SPE) and the American Association of Petroleum Geologists (AAPG).
R. V. Bailey. Mr. Bailey served as our vice president until January 2008
when he was appointed as our chief executive officer as a result of Mr. Cohan's
stroke. Mr. Bailey obtained a Bachelor of Science degree in Geology from the
University of Wyoming in 1956. He has approximately 45 years experience in
exploration and development of mineral deposits, primarily gold, uranium, coal,
and oil and gas. His experience includes basic conception and execution of
15
mineral exploration projects. Mr. Bailey is a member of several professional
societies, including the Society for Mining and Exploration, the Society of
Economic Geologists and the American Association of Petroleum Geologists, and
has written a number of papers concerning mineral deposits in the United States.
He is the co-author of a 542-page text, published in 1977, concerning applied
exploration for mineral deposits. Mr. Bailey is the founder of Aspen and has
been an officer and director since its inception, and currently devotes a
substantial portion of his time to Aspen's business.
Kevan B. Hensman became a director of Aspen Exploration Corporation on
September 11, 2006. As a result of Mr. Cohan's stroke, Mr. Hensman was appointed
as our chief financial officer in January 2008. Since April 2002, except for a
one-year position as Manager of Paramount Citrus Association, Mr. Hensman has
served as an Analyst for Truxtun Radiology Medical Group, LP with the duties of
providing financial analysis; performing annual projects; and assisting the
Practice Administrator in performing various duties and assignments.
Additionally, Mr. Hensman has extensive experience in the oil and gas industry.
From November 1997 to May 1999 Mr. Hensman served as the Planner/Gas Analyst for
Texaco Exploration and Production Company. Mr. Hensman served as the Supervisor
of Fuel Supply and Acquisition Analyst from February 1991 to October 1997 for
Santa Fe Energy/Monterey Resources. In 1999, Mr. Hensman received a Bachelor of
Science degree in finance from California State University Bakersfield (CSUB).
Mr. Hensman is not a director of any other public company. As described below,
Mr. Hensman, in his capacity as chief financial officer, served and was paid as
a Company consultant.
Douglas P. Imperato. Mr. Imperato was appointed to our Board of Directors
on December 9, 2008. Since 1996, Mr. Imperato has been a self-employed geologist
in the oil and gas exploration industry. Mr. Imperato served as a director for
Applied Earth Technology, Inc. from September 1985 through September 1989. As
described below, Mr. Imperato has also served and was paid as a Company
consultant on an on-going basis.
Significant Employees and Family Relationships.
There are no family relationships between any director, executive officer,
or person nominated or chosen by the Company to become a director or executive
officer.
Involvement in Certain Legal Proceedings
During the past five years, no present director or executive officer of the
Company has been the subject matter of any of the following legal proceedings:
(a) any bankruptcy petition filed by or against any business of which such
person was a general partner or executive officer either at the time of the
bankruptcy or within two years prior to that time; (b) any criminal convictions;
(c) any order, judgment, or decree permanently or temporarily enjoining,
barring, suspending or otherwise limiting his involvement in any type of
business, securities or banking activities; or (d) any finding by a court, the
SEC or the CFTC to have violated a federal or state securities or commodities
law. Further, no such legal proceedings are believed to be contemplated by
governmental authorities against any director or executive officer.
Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the Securities Exchange Act of 1934 (the "Exchange Act")
requires Aspen's directors and officers and any persons who own more than ten
percent of Aspen's equity securities, to file reports of ownership and changes
in ownership with the Securities and Exchange Commission (the "SEC"). All
directors, officers and greater than ten-percent stockholders are required by
SEC regulation to furnish Aspen with copies of all Section 16(a) reports filed.
Based solely on our review of the copies of Forms 3, 4 and any amendments
thereto furnished to us during the fiscal year completed June 30, 2009 and
subsequently, we believe that during the period from July 1, 2009 through the
date of this Proxy Statement, all filing requirements applicable to our
officers, directors, and greater-than-ten-percent stockholders were complied
with.
16
Certain Relationships and Related Transactions and Director Independence
None of Aspen's directors are considered to be "independent" as defined by
Section 803A of the NYSE Amex Company Guide inasmuch as each of the directors
has had material relationships with Aspen. The Board considers all relevant
facts and circumstances in its determination of independence of all members of
the Board. The following sets out information regarding transactions between
officers, directors, and significant stockholders of Aspen during the most
recent two fiscal years and during the subsequent fiscal year.
Working Interest Participation:
Some of the directors and officers of Aspen are engaged in various aspects
of oil and gas and mineral exploration and development for their own account.
Aspen has no policy prohibiting, nor does its Certificate of Incorporation
prohibit, transactions between Aspen and its officers and directors.
Historically we entered into cost-sharing arrangements with respect to the
drilling of its oil and gas properties. Directors and officers (and other
employees) may participate (and from time to time have participated) in these
arrangements. All directors and executive officers participating in these
drilling opportunities must do so on the same basis as non-affiliated
participants, and consequently must share a proportional amount of Aspen's
promotional interest.
At June 30, 2008, R. V. Bailey (Aspen's chief executive officer and
chairman of the Board) and Robert A. Cohan (president and director), each had
working and royalty interests in certain of the California oil and gas
properties operated by Aspen including Johnson #11, #12 and #13 in the Johnson
Unit of the Malton Black Butte field and the Merrill #31-1 which are subject to
possible title deficiencies. Depending on the results of our analysis of these
deficiencies (which are described in more detail above), we may have overpaid
Messrs. Bailey and Cohan some amounts to the same extent (if at all) we may have
overpaid other working interest owners in the Johnson Unit of the Malton Black
Butte Field with respect to Johnson #11 and #12, and the Merrill #31-1 well.
Because we have not commenced production on Johnson #13, we have not made any
payments to working interest or royalty owners of that well. In addition, they
may have overpaid their share of the drilling costs of such wells.
At June 30, 2009, no director or officer of Aspen owned a working interest
in certain of the California oil and gas properties formerly operated by Aspen.
As of June 30, 2008 and 2009, working interests of the Company and its
affiliates in certain producing California properties are set forth below, as
compared to Aspen's interests in all of its wells:
Gross Wells Net Wells
Gas Gas
----------- ---------
As of June 30, 2008
Aspen Exploration 88 19.17
R. V. Bailey 67 2.14
R. A. Cohan 67 1.2
We did not grant any participatory rights in our Montana oil properties.
17
Amended Royalty and Working Interest Plan:
A discussion of Aspen's Amended Royalty and Working Interest Plant and the
specific royalties assigned to our executive officers is included in "Executive
Compensation" below.
Employment Agreements:
See the Executive Compensation disclosure and discussion in this Proxy
Statement -- Employment contracts and termination of employment and change in
control arrangements, for a discussion of the employment contracts between Aspen
and Messrs. Cohan and Bailey.
Consulting Fees and Other Compensation Arrangements
Mr. Imperato. Mr. Imperato was appointed to our Board of Directors in
December 2008, and has served as a Company consultant on an on-going basis. In
the past we paid Mr. Imperato consulting fees for services provided to the
Company, and have paid such fees during our 2009 fiscal year. These fees, paid
at the rate of $93.75 per hour during our 2009 fiscal year, amounted to $86,625
in fiscal 2009.
Mr. Imperato also had working and royalty interests in certain of the
California oil and gas properties that were operated by the Company prior to the
June 30, 2009 sale to Venoco. During the Company's fiscal year ended June 30,
2008 Mr. Imperato was paid $166,202 in royalties and $262,671 from his working
interests. During fiscal year ended June 30, 2009 Mr. Imperato was paid $93,400
in royalties and $98,856 from his working interests.
Mr. Imperato also entered into an agreement with Brian Wolf Oil & Gas
Properties ("Wolf"), who was engaged by the Company to assemble and operate the
Company data room and to assist in the sale of Aspen's properties. The agreement
between Aspen and Wolf required that Aspen pay Wolf 3% of the gross purchase
price for the properties, and as a result, Aspen paid Wolf $671,733.57. Wolf had
agreed to share a portion of this commission with Mr. Imperato, and as a result
paid Mr. Imperato $331,134. Mr. Imperato disclosed this compensation arrangement
to the Company prior to his appointment to the Board of Directors, and it had
been negotiated between Wolf and Mr. Imperato several months before Mr. Imperato
was a director of Aspen.
Mr. Hensman. Mr. Hensman assumed the role of chief financial officer upon
Mr. Cohan's disability. In that role, Aspen has been paying him consulting fees
at $70 per hour as disclosed above in the notes to the Summary Compensation
Table in the Executive Compensation disclosure below.
Other Arrangements:
During the fiscal years 2009 and 2008, Aspen paid for various hospitality
functions and for travel, lodging and hospitality expenses for spouses who
occasionally accompanied directors when they were traveling on company business.
Management believes that the expenditures were to Aspen's benefit.
Meetings of the Board and Committees
The Board of directors held one formal meeting during the fiscal year ended
June 30, 2008 and six formal meetings during the fiscal year ended June 30,
2009. Each director attended all of the formal meetings either in person or by
telephone, without exception. In addition, regular communications were
maintained throughout the year among all of the officers and directors of the
Company and the directors acted by unanimous consent six times during fiscal
2008, four times during fiscal 2009, and three times subsequently.
18
No Audit Committee or Code of Ethics:
Aspen does not have an audit committee, compensation committee, nominating
committee, or other committee of the Board that performs similar functions.
Instead, the entire Board acts as the Company's audit committee, and therefore,
Aspen does not have a designated audit committee financial expert.
Aspen's Board of Directors has not adopted a code of ethics because the
Board does not believe that, given the small size of Aspen and the limited
transactions, a code of ethics is warranted.
No Nominating Committee; Procedures by which Security Holders May Recommend
Nominees to the Board of Directors; Communications with Members of the Board of
Directors:
As noted above, Aspen does not have a nominating committee. We do not have
a nominating committee because our Board of Directors does not believe that such
a committee is necessary given our small size, and because we have not held an
Annual Meeting of stockholders since February 1994. Instead, when a board
vacancy occurs, the remaining board members participate in deliberations
concerning director nominees.
As required by Section 2.12 of Aspen's Bylaws, any stockholder who desires
to submit a nomination of a person to stand for election of directors at a
stockholders meeting at which directors are to be elected must submit a
notification of the stockholder's intention to make a nomination
("Notification") to Aspen at least 45 days prior to the Annual Meeting and must
provide the following additional information to Aspen:
1. Name, address, telephone number and other methods by which Aspen can
contact the stockholder submitting the Notification and the total number of
shares beneficially owned by the stockholder (as the term "beneficial
ownership" is defined in SEC Rule 13d-3);
2. If the stockholder owns shares of the Company's voting stock other than on
the records of the Company, the stockholder must provide evidence that he
or she owns such shares (which evidence may include a current statement
from a brokerage house or other appropriate documentation);
3. Information from the stockholder regarding any intentions that he or she
may have to attempt to make a change of control or to influence the
direction of the Company, and other information regarding the stockholder
or any other persons associated with the stockholder that would be required
under Items 4 and 5 of SEC Schedule 14A were the stockholder or other
persons associated with the stockholder making a solicitation subject to
SEC Rule 14a-12(c);
4. Name, address, telephone number and other contact information of the
proposed nominee; and
5. All information required by Item 7 of SEC Schedule 14A with respect to the
proposed nominee, in a form reasonably acceptable to the Company.
Any stockholder desiring to communicate directly with any officer or
director of Aspen may address correspondence to that person at our offices in
Denver, Colorado. Our office staff will forward such communications to the
addressee.
19
EXECUTIVE COMPENSATION
The following table sets forth information regarding compensation awarded,
paid to, or earned by the chief executive officer and the other principal
officers of Aspen for the two years ended June 30, 2008 and 2009. No other
person who is currently an executive officer of Aspen earned salary and bonus
compensation exceeding $100,000 during any of those years. This includes all
compensation paid to each by Aspen and any Aspen subsidiary.
SUMMARY COMPENSATION TABLE
Non-Equity Non-Qualified
Stock Option Incentive Plan Deferred Plan All Other
Name and Fiscal Salary Bonus Awards Awards Compensation Compensation Compensation Total
Principal Position Year ($) ($) ($) ($) ($) ($) ($) ($)
------------------ ------ ------ ----- ------ ------ ------------ ------------ ------------ -----
R. A. Cohan, 2009 $ 80,000 $ - $ - $ - $ - $ - $ 24,523 $104,523
President and director 2008 $160,000 $ - $ - $71,563 $ - $ - $156,123 $387,686
R. V. Bailey, CEO 2009 $ 90,000 $ - $ - $ - $ - $ - $ 76,067 $166,067
and Chairman, 2008 $ 60,000 $ - $ - $50,957 $ - $ - $135,367 $246,324
Executive Vice
President
Compensation Discussion and Analysis
- ------------------------------------
The following Compensation Discussion and Analysis describes the material
elements of compensation for the executive officers identified in the Summary
Compensation Table contained above - being our chief executive officer (R.V.
Bailey ("CEO")), and President (Robert A. Cohan), the "named executive
officers."
As more fully described below, the board of directors (which includes the
named executive officers) acting in lieu of a compensation committee reviews the
total direct compensation programs for our CEO, and President. Notably the
salary and other benefits payable to our named executive officers are set forth
in employment agreements which are discussed below. The only discretionary
portion of the compensation is the options that may (in the discretion of the
board) be issued to the named executive officers.
Our CEO reviews the base salary, annual bonus and long-term compensation
levels for other employees of the Company. The entire Board of Directors remains
responsible for significant changes to, or adoption of, new employee benefit
plans.
Cash Compensation Payable To Our Named Executive Officers. Historically,
our named executive officers receive a base salary payable in accordance with
our normal payroll practices and pursuant to contracts between each of these
officers and Aspen (which contracts are described in more detail below), except
for Kevan Hensman, our Chief Financial Officer, who is compensated on an hourly
basis for services rendered. We believe that the base salaries as set forth in
the employment contracts were reasonable when entered into and were less than
those that are received by comparable officers with comparable responsibilities
in similar companies. Notably our chief executive officer and our president were
participants in our amended royalty and working interest plan discussed below.
Our chief financial officer did not participate in this plan. As described in
more detail below, Mr. Cohan's employment contract expired December 31, 2008 and
Mr. Bailey's contract will expire December 31, 2009.
20
In the future, when we reconsider salaries for our executives, we will do
so by evaluating their responsibilities, experience and the competitive
marketplace. More specifically, we expect to consider the following factors in
determining our executive officers' base salaries:
1. the executive's leadership and operational performance and potential
to enhance long-term value to the Company's shareholders;
2. performance compared to the financial, operational and strategic goals
established for the Company;
3. the nature, scope and level of the executive's responsibilities;
4. competitive market compensation paid by other companies for similar
positions, experience and performance levels; and
5. the executive's current salary, the appropriate balance between
incentives for long-term and short-term performance.
Unless the composition of our board of directors changes before that time,
however, the board considering these issues will not be independent. All of our
directors are employees, Company consultants, or named executive officers. Thus,
any compensation decisions made in the future are not likely to be at
arms'-length.
Stock Option Plan Benefits. Our officers and directors are eligible to be
granted options. Currently the Company only has one formal equity compensation
plan, (the "2008 Equity Plan").
Prior to the adoption of the 2008 Equity Plan Messrs. Cohan, Bailey, and
Hensman were granted option outside of that plan and own the following options
which are not subject to vesting criteria or termination in the event the
individual is no longer associated with Aspen.
Options Exercise Expiration
Outstanding Price Date
----------- ----- ----
Cohan 80,000 $2.67 January 1, 2010
Bailey 65,000 2.67 January 1, 2010
Hensman 10,000 3.70 September 11, 2011
The 2008 Equity Plan (consisting of 1,000,000 shares, options for 600,000
of which were granted to persons serving as our directors on February 28, 2008).
The 2008 Equity Plan provides for:
o a cashless exercise of the options granted (ss.7(d)(5) of the 2008
Equity Plan),
o "all Options theretofore granted to such Recipient but not theretofore
exercised shall terminate three months following the date the
Recipient ceased to be an employee, officer, advisor or consultant of
the Corporation" unless for "Cause," in which case the options
terminate immediately (ss.7(e) of the 2008 Equity Plan), and
o The continued exercisability of all options for one year following the
death or disability of the option holder (ss.7(f) of the 2008 Equity
Plan).
21
With respect to the options granted under the 2008 Equity Plan, one-third
of the options granted vested or expired as of September 30, 2008, one-third as
of September 30, 2009, and one-third as of September 30, 2010, in each case
based on Aspen achieving certain performance goals as reflected in its audited
financial statements and reserve report as of the fiscal year end immediately
preceding such date. To the extent they vest, the options expire February 27,
2013. The options are exercisable at $2.14 per share - well in excess of the
current market price. The following table sets forth the performance standards.
Actual Results
for year ended Goals for the Year Ended June 30,
Factors* Weight June 30, 2007 2009 2010
-------- ------ ------------- ---- ----
Total Barrels of Oil
Equivalent - Proved 30% 580,045 650,000 700,000
Present Value of Reserves
- - 10% Discount 25% $13,400,466 $15,140,000 $16,030,000
Production (Barrels of Oil
Equivalent) 30% 103,653 120,000 130,000
Net Income 15% $925,269 10% increase 10% increase
over prior year over prior year
* No factor may be valued more than 100%. Any factor that is less than
the 2007 base year will be weighted at zero.
At June 30, 2008, 90,600 options were earned by the named executive
officers based on performance conditions that were met, and 76,067 options
expired due to unmet conditions. The 90,600 options that were earned by the
named executive officers as of June 30, 2008 vested as of September 30, 2008.
166,667 options that were subject to the vesting requirements during the 2009
fiscal year were unearned during fiscal 2009 due to unmet conditions.
Specifically:
o Since the Venoco transaction closed on June 30, 2009, there will be no
reserve report for the fiscal year ended 2009. Thus the first two
conditions (55%) cannot be met.
o Since the transaction closed as of December 1, 2008, the third
condition (30%) was not met.
o The fourth condition (15%) was not met due to a net loss for the 2009
fiscal year.
Elements of "All Other Compensation." The amounts reflected in the column
labeled "other compensation" in the above Summary Compensation Table
predominately consist of compensation paid to the named executive officers from
our "Amended Royalty and Working Interest Plan" and from benefits received from
our 401(k) plan.
1. "Amended Royalty and Working Interest Plan"
Aside from their base salaries, the largest element of the compensation of
our executive officers is realized from our "Amended Royalty and Working
Interest Plan" (the "Plan") by which we have in the past, in our discretion,
assigned overriding royalty interests or other interests in oil and gas
properties or in mineral properties. This plan was intended to provide
additional compensation to Aspen's personnel involved in the acquisition,
22
exploration and development of Aspen's oil or gas or mineral prospects. In
addition to our executive officers, all of our employees are eligible to
participate in this Plan. In the fiscal years ended June 30, 2009 and 2008, Ms.
Shelton, our corporate office manager (and neither an officer nor a director of
Aspen), also participated in the Plan. Inasmuch as Aspen is not engaged in the
oil and gas industry at the present time, we do not expect any additional
assignments to be made under this plan.
The allocations for royalty under Aspen's "Royalty and Working Interest
Plan" for employees are based on a determination by management whether there is
any "room" for royalties in a particular transaction. In some specific cases
management may believe that an oil or gas property or project is sufficiently
burdened with existing royalties so that no additional royalty burden can be
allocated to our employees for that property or project. In other situations a
determination may be made that there are royalty interests available for
assignment to our employees. The determination of whether royalty interests are
available and how much to assign to employees (usually less than 3%) is made on
a case-by-case basis by Robert A. Cohan, president, and R. V. Bailey, our chief
executive officer and vice president, both of whom benefit from royalty
interests assigned. We never granted any overriding royalty interests in our
Montana oil properties (which properties we sold in February 2009).
During fiscal year 2008, we assigned to employees royalties on certain of
our properties pursuant to our Amended Royalty and Working Interest Plan, as set
forth in the following table. No assignments of overriding royalty interests
were made to employees during fiscal year 2009. At the time we assign these
overriding royalty interests, we considered the value of the royalties assigned
to be nominal since the assignments are made while the properties are
undeveloped and unproved, and before any wells or drilled or significant
exploratory work has been performed. The overriding royalty interests in these
properties granted to our named officers and our one additional (non-executive)
employee were as follows:
R.V. Bailey R.A. Cohan J.L. Shelton
----------- ---------- ------------
Assigned during the
2009 fiscal year percent percent percent
-- -- --
Assigned during the
2008 fiscal year:
Johnson Unit 13 1.260000 1.260000 0.480000
SJDD 11-1 1.360000 2.000000 0.640000
Delta Farms 10 0.816000 1.200000 0.384000
Eastby 1-1 0.906661 1.333325 0.426664
The following table sets forth the payments received during the years
stated by our named executive officers.
Payments Received During
Fiscal Year Ended June 30,
--------------------------
2009 2008
---- ----
Mr. Cohan $59,114 $145,873
Mr. Bailey $43,234 $102,927
23
These payments derive from royalties assigned to employees as described
above and the royalties that were assigned in prior years. Any monies realized
by our executive officers under the Amended Royalty and Working Interest Plan
are reflected in column labeled "All Other Compensation" in the Summary
Compensation Table.
2. Other Elements of Compensation and Benefits
Our executive officers also receive certain other benefits, although these
benefits do not constitute a large portion of their overall compensation. These
benefits are summarized below.
We have a Profit-Sharing 401(k) Plan which we adopted effective July 1,
1990. All employees are eligible to participate in this Plan immediately upon
being hired to work at least 1,000 hours per year and attained age 21. Aspen's
contribution (if any) to this plan is determined by the Board of Directors each
year.
We adopted an Amendment to the Profit-Sharing 401(k) Plan effective July 1,
2005 which states that Aspen will make matching contributions equal to 50% of
the participant's elective deferrals. During fiscal 2008, we contributed $30,250
to the plan ($10,000 to R. V. Bailey's plan; $10,250 to Robert A. Cohan's plan;
$10,000 to Judith L. Shelton's plan). During fiscal 2009, we contributed $25,125
to the plan ($10,000 to R. V. Bailey's plan; $5,125 to Robert A. Cohan's plan;
$10,000 to Judith L. Shelton's plan). When amounts are contributed to Mr.
Bailey's and Mr. Cohan's accounts (which amounts are fully vested), these
amounts are also included in the column labeled "All Other Compensation" in the
Summary Compensation table, above.
For the fiscal years ended June 30, 2009 and 2008, the Company had a policy
of reimbursing employees for medical expenses incurred but not covered by the
paid medical insurance plan. Expenses reimbursed for fiscal 2009 and fiscal 2008
were $22,833 and $24,108, respectively. As of June 30, 2009 and 2008 there were
no accruals for reimbursement of medical expenses. Under the terms of Mr.
Bailey's current employment agreement, he is responsible for his own medical
insurance premiums and will no longer be reimbursed excess medical expenses.
During the 2008 fiscal year Aspen provided one vehicle each to Messrs.
Bailey and Cohan. In fiscal 2009, Messrs. Bailey and Cohan purchased the
vehicles from the Company. Mr. Cohan purchased his vehicle from Aspen at fair
market value as determined in the used car market. Pursuant to Mr. Bailey's
September 2004 employment agreement, he purchased his vehicle from Aspen for
$500, significantly below the fair market value of that vehicle. The difference
between the purchase price paid by Mr. Bailey when he acquired his vehicle from
Aspen for $500 (pursuant to his September 2004 employment agreement) and the
fair market value of that vehicle ($31,500) is also included in "Other
Compensation" for Mr. Bailey.
3. Expense Reimbursement.
We have agreed to reimburse our officers and directors for out-of-pocket
costs and expenses incurred on behalf of Aspen. Since this reimbursement is on a
fully-accountable basis, there is no portion treated as compensation.
4. Purchases of Working Interests
As described in Item 1, above, when Aspen was actively operating its
California natural gas properties, Aspen generally did not incur all of the
expense and bear all of the risk in drilling its wells. Aspen generally sought
other participants who were familiar with the oil and gas industry and the wells
24
being drilled and retained a promotional interest. Oftentimes, our named
executive officers participate in these wells. When they did so, they purchased
working interests on the same basis as unaffiliated parties and bear their
proportionate share of Aspen's promotional interest. These investments by our
named executive officers are not considered to be compensatory since the named
executive officers are participating in the wells on the same basis as
unaffiliated parties.
5. Other
Mr. Cohan also served as a director during our fiscal year 2009 and was
compensated $4,000 for serving in that capacity. This amount is included in
"Other Compensation" above rather than added to the Director compensation table
below.
Employment Agreement with our Named Executive Officers. We have entered
into employment agreements with two of our named executive officers. The
material terms of these agreements are summarized as follows:
Mr. Cohan: Aspen and Robert A. Cohan entered into an employment agreement
dated January 1, 2003, as amended on April 22, 2005 (the "Agreement"). The
Agreement was for an initial three year term, was amended in April 2005, and
expired on December 31, 2008. Under the Agreement we paid Mr. Cohan an annual
salary of $160,000 and we offered Mr. Cohan health insurance, cost
reimbursement, and certain other benefits.
As reported in January 2008, Mr. Cohan suffered a stroke and was unable to
continue to perform his duties as chief executive officer and chief financial
officer of Aspen. As a result, these duties were assumed by Messrs. R.V. Bailey
and Kevan Hensman. As a result, on September 4, 2008, Aspen notified Mr. Cohan
that his employment agreement would not be renewed when it expired on December
31, 2008.
Mr. Bailey: Effective May 1, 2003, and as amended September 21, 2004, we
entered into an employment agreement with R. V. Bailey (the "2003 Agreement").
The pertinent provisions of the 2003 Agreement included an employment period
ending May 1, 2009, the title of Vice President (although Mr. Bailey is now
serving as our chief executive officer) and an annual salary of $60,000 per year
from January 1, 2007, ending May 1, 2009. Effective as of January 1, 2009, and
as amended July 21, 2009, we entered into a new employment agreement with Mr.
Bailey (the "2009 Agreement") pursuant to which both parties agreed that the
2003 Agreement was terminated as of January 1, 2009. The pertinent provisions of
the 2009 Agreement include an employment period ending December 31, 2009 with a
salary of $120,000 per year. The 2009 Agreement provides that Mr. Bailey is
eligible to participate in Aspen's stock options and royalty interest programs.
During the term of the agreement, and in lieu of health insurance, we have
agreed to pay Mr. Bailey a monthly allowance to cover such items as
prescriptions, medical and dental coverage for himself and his dependents and
other expenses not covered in the agreement. To the extent that Mr. Bailey does
not provide documentation accounting for the expenditure of this amount for
medical reimbursement purposes, it is treated as compensation to him. The
original monthly allowance was $1,700, but the agreement provided that it should
be adjusted each June for inflation. Currently the monthly allowance is $1,966.
We may terminate the 2009 Agreement upon Mr. Bailey's death by paying his
estate all compensation that had or will accrue to the end of the year of his
death plus $75,000. Should Mr. Bailey become totally and permanently disabled,
we will pay Mr. Bailey one half of the salary and benefits set forth in our
agreement with him for the remainder of the term of the 2009 Agreement. Aspen
may not terminate the 2009 Agreement for other reasons. The 2003 Agreement
terminated Aspen's obligations under a previous agreement by which it was
obligated to repurchase Mr. Bailey's stock upon his death.
25
Stock Options and Stock Appreciation Rights Granted During the Last Fiscal Year:
On February 27, 2008, the Board of Directors adopted the 2008 Equity Plan
(the "Plan"). 1,000,000 shares of common stock are reserved under the Plan for
the grant of stock options or issuance of stock bonuses to compensate new,
continuing, and existing employees, officers, consultants, and advisors of the
Company. Concurrent with the adoption of the Plan, the board granted options to
purchase 775,000 shares of common stock at an exercise price of $2.14 per share.
1/3 of the shares vest on each September 30, of 2008, 2009, and 2010 if certain
performance conditions are met. At June 30, 2008, 247,097 shares were earned,
based on performance conditions, and 117,902 expired. At June 30, 2009, no
shares were earned, based on performance conditions, and 258,333 expired.
The following table sets out the unexercised stock options, stock granted as
bonuses that have not vested, and equity incentive plan awards for each Named
Executive Officer outstanding at June 30, 2009.
OUTSTANDING EQUITY AWARDS AT FISCAL YEAR-END
Equity Incentive
Market Plan Awards:
Number of Securities Number of Value of Number of
Underlying Unexercised Shares or Shares or Unearned
Options(1)(#) Units of Units of Shares, Units,
--------------------------- Option Option Stock That Stock That Other Rights
Exercise Expiration Have Not Have Not That Have Not
Name and Principal Position Exercisable Unexercisable Price ($) Date Vested (#) Vested ($) Vested (#)
- --------------------------- ----------- ------------- --------- ---- ---------- ---------- ----------
R. V. Bailey, 65,000 - 2.67 1/1/2010 - $ - -
CEO and Chairman 36,240 66,667 2.14 2/27/2013 66,667 60,000 66,667
Robert A. Cohan, 80,000 - 2.67 1/1/2010 - - -
President and Director 54,360 100,000 2.14 2/27/2013 100,000 90,000 100,000
Kevan Hensman, 10,000 - 3.70 9/11/2011 - - -
CFO and Director 18,120 33,333 2.14 2/27/2013 33,333 30,000 33,333
(1) On February 27, 2008, the Board of Directors adopted the 2008 Equity Plan
(the "Plan"). 1,000,000 shares of common stock are reserved under the Plan for
the grant of stock options or issuance of stock bonuses to compensate new,
continuing, and existing employees, officers, consultants, and advisors of the
Company.
(2a) On April 27, 2005, Mr. Bailey was granted an option to purchase 65,000
shares of our common stock at an exercise price of $2.67 per share. These
options vested over three years without performance criteria, and are now
entirely vested.
(2b) On February 27, 2008, Mr. Bailey was granted an option to purchase 200,000
shares of our common stock at an exercise price of $2.14 per share. 1/3 of the
shares vest on each September 30, of 2008, 2009, and 2010 if certain performance
criteria are met. At June 30, 2009, 36,240 were earned (based on the FY 2008
performance criteria), and 97,094 options expired (including 66,667 that expired
in fiscal 2009 as a result of meeting none of the performance criteria).
26
(3a) On February 27, 2008, Mr. Cohan was granted an option to purchase 300,000
shares of our common stock at an exercise price of $2.14 per share. 1/3 of the
shares vest on each September 30, of 2008, 2009, and 2010 if certain performance
criteria are met. At June 30, 2009, 54,360 were earned (based on the FY 2008
performance criteria), and 145,640 options expired (including 100,000 that
expired in fiscal 2009 as a result of meeting none of the performance criteria).
(3b) On April 27, 2005, Mr. Cohan was granted an option to purchase 80,000
shares of our common stock at an exercise price of $2.67 per share. These
options vested over three years without performance criteria, and are now
entirely vested.
(4a) On February 27, 2008, Mr. Hensman was granted an option to purchase 100,000
shares of our common stock at an exercise price of $2.14 per share. 1/3 of the
shares vest on each September 30, of 2008, 2009, and 2010 if certain performance
criteria are met. At June 30, 2009, 18,120 were earned (based on the FY 2008
performance criteria), and 48,546 expired (including 33,333 that expired in
fiscal 2009 as a result of meeting none of the performance criteria).
(4b) On September 11, 2006, Mr. Hensman was granted an option to purchase 10,000
shares of Aspen's common stock exercisable at $3.70. The option vested
immediately and is exercisable through September 11, 2011. These options vested
when granted.
Long Term Incentive Plans/Awards in Last Fiscal Year:
Except as described in our 401(k) plan, we do not have a long-term
incentive plan nor have we made any awards during the fiscal years ended June
30, 2009 or 2008.
Report on Re-pricing of Options/SARs:
We did not re-price any options or stock appreciation rights during the
fiscal years ended June 30, 2008, June 30, 2009, or subsequently.
Compensation of Directors
- -------------------------
Although we have not formally adopted a plan for the compensation of our
directors, in September 2006, upon his appointment as a director we issued Mr.
Hensman an option to purchase 10,000 share of our common stock at a price of
$3.70 per share, exercisable through September 11, 2011. In addition, we agreed
to pay Mr. Hensman $2,000 per meeting of the board of directors that he attends
in person or by telephone, and to reimburse him for any expenses that he may
incur in performing his duties as a member of the board of directors.
Subsequently, we offered the same compensation terms to Mr. Imperato (who became
a director in December 2008) and to Mr. Cohan (who ceased being an employee of
Aspen as of December 31, 2008). The fees earned by Messrs. Hensman and Imperato
for attending meetings in fiscal year 2009 are reflected in the Director
Compensation Table below. As a result of his appointment as chief financial
officer, Mr. Hensman is also receiving consulting fees from Aspen at the rate of
$70.00 per hour. Mr. Imperato, who was a consultant to Aspen even before his
appointment as a director, received consulting fees during FY 2009 at the rate
of $93.75 per hour which are reflected in note 2 to the Director Compensation
table, below.
Mr. Cohan also served as a director during our fiscal year 2008 but is not
reflected in the Director Compensation table below as all compensation received
by him is reflected in the Summary Compensation table.
27
We have no other arrangements pursuant to which any of our directors was
compensated during the fiscal year ended June 30, 2008 or 2009 for services as a
director.
DIRECTOR COMPENSATION
- -------------------------------------------------------------------------------------------------
Non-Equity Non-Qualified
Incentive Deferred
Fees Earned Stock Option Plan Compensation
or Paid Nonqualifed Awards Compensation on Earnings Total
Name in Cash Awards ($) ($) ($) ($) ($)
- ------------- ----------- ----------- ------ ------------ ----------- -----
Kevan Hensman $ 10,000 $ - $ - $ - $ - $ 10,000
Douglas Imperato $ 6,000 $ - $ - $ - $ - $ 6,000
(1) Mr. Hensman was appointed to our board of directors in September 2006 and
during our 2007 fiscal year was paid fees for attending board meetings and was
also granted an option to purchase 10,000 shares of our common stock upon his
appointment to our board of directors. In January 2008 Mr. Hensman was appointed
to serve as our chief financial officer. The line item above solely reflects
compensation paid to Mr. Hensman during fiscal 2009 in his capacity as a
director. In addition to the directors' fees that he received during fiscal 2009
Mr. Hensman received $9,520 in fees for services provided in his capacity as our
chief financial officer.
(2) Mr. Imperato was appointed to our board of directors in December 2008 and
during our 2009 fiscal year was paid fees for attending board meetings. The line
item above solely reflects compensation paid to Mr. Imperato during fiscal 2009
in his capacity as a director. In addition to the directors' fees that he
received, during its fiscal 2009, Aspen paid Mr. Imperato $86,625 in consulting
fees. On February 27, 2008, Mr. Imperato was granted an option to purchase
25,000 shares of our common stock at an exercise price of $2.14 per share. 1/3
of the shares vest on each of September 30, 2008, 2009, and 2010 if certain
performance criteria are met. At June 30, 2009, 4,530 were earned, based on the
performance criteria (FY 2008) and vested on September 30, 2008, and 12,136
expired.
Vote Required and Recommended
For Proposal 1, the four nominees for the Board of Directors receiving a
plurality of the votes cast will be elected to serve on the Board of Directors.
The Board of Directors of Aspen recommends that stockholders vote FOR each
of the four nominees for directors: Mr. Bailey, Mr. Cohan, Mr. Hensman, and Mr.
Imperato. Unless otherwise specified, the enclosed proxy will be voted "FOR"
each of the above listed nominees for the Board of Directors.
PROPOSAL TWO
APPROVAL TO GRANT THE BOARD OF DIRECTORS DISCRETIONARY AUTHORITY
TO DISSOLVE THE COMPANY
Proposal No. 2 is for the approval of a resolution granting Aspen's Board
of Directors the authority, in its discretion, to dissolve the Company. As a
result of the sale of the Company's interest in a Montana oil property in
February 2009 and the sale of the Company's California oil and gas properties
28
and assets in June 2009 the Company does not currently have any active business
operations. Although the Company is currently exploring other business
opportunities, as of September 15, 2009 the Company's discussions with third
parties have only been preliminary in nature. The Company intends to continue to
explore business opportunities with third parties. As we have not, and do not,
intend to limit what types of business opportunities we have or may pursue, if
we identify an appropriate business opportunity it may result in Aspen changing
its line of business although to date Aspen has, and intends, to focus its
search within the broad scope of the natural resources industry.
Reasons the Proposal for Possibly Dissolving the Company is Being Submitted for
Stockholder Approval
As a result of the sale of the Company's California and Montana oil and gas
properties and assets the Company currently has no material or revenue
generating operations. In order to gain approval for the sale of the California
properties, Aspen was required to seek stockholder approval. In complying with
the rules and regulations of the Securities and Exchange Commission relating to
the proxy statement process, one stockholder submitted a request that Aspen
request that its stockholders consider a dissolution proposal at the same time.
Although this had been discussed previously by Aspen's Board of Directors, the
Aspen Board was concerned about the complexity of such a lengthy proxy statement
and posed certain other objections to the inclusion of a dissolution proposal at
that time. Aspen also advised the stockholder that Aspen would submit a
dissolution proposal for consideration by stockholders at a meeting scheduled to
be held later in 2009. At that time, the stockholder withdrew his proposal and
the SEC completed its review process. Subsequently one other stockholder stated
in a filing submitted to the Securities and Exchange Commission on July 30, 2009
that if Aspen does not submit a proposal for dissolution to its stockholders at
the Annual Meeting he may take action to try to cause a change of control at
Aspen.
As noted, the Aspen Board had considered the possibility of dissolution
even before the stockholder proposal was presented, recognizing that following
the sale of its California assets Aspen would only have liquid assets and
immaterial other assets. Certain of the directors recognized that as a
publicly-held corporation with liquid assets and no business operations, Aspen
may have a value greater than the value of the cash. Nevertheless, the directors
have recognized that if a majority of Aspen's stockholders approve Proposal No.
2 at the Annual Meeting, the Board should exercise its business judgment in
determining whether to dissolve the corporation or to consider possible business
opportunities. In any event, the Board must exercise its authority to dissolve
Aspen by filing a certificate of dissolution with the Delaware Secretary of
State on or before December 31, 2010, or the authority to dissolve will be
revoked.
The Board of Directors will likely consider exercising that authority if no
other appropriate business opportunities are then identified by the Company. The
Board of Directors may deem it advisable to dissolve the Company should no other
appropriate business opportunities be identified because of the lack of income
producing assets Aspen owns and the significant costs associated with
maintaining the limited business operations while complying with the regulations
governing public companies.
Delaware law requires that stockholders approve and authorize the
dissolution of a corporation. As such, and for the reasons outlined above, Aspen
is submitting Proposal No. 2 to the stockholders.
29
Resolution to Possibly Dissolve the Company
At the meeting, the stockholders will be asked to consider the following
resolution for the dissolution and liquidation of the Company:
RESOLVED, that the Board of Directors hereby finds and determines that
it is in the best interests of the Company and its stockholders that
the Board of Directors have the authority to dissolve the Company, and
hereby adopts this resolution pursuant to Section 275 of the Delaware
General Corporation Law (the "DGCL") and any other applicable
provisions therein, reserving the right to the Board of Directors to
determine when and if to complete the dissolution of the Company by
filing a certificate of dissolution with the Delaware Secretary of
State as required by the DGCL, and further reserving to the Board of
Directors in its discretion to abandon the dissolution of the Company,
with the understanding that if the dissolution of the Company has not
been completed by filing a certificate of dissolution with the
Delaware Secretary of State on or before December 31, 2010, the Board
will be deemed to have made the decision to abandon the dissolution of
the Company.
Board Recommendation
A majority of the Board of Directors did not reach a consensus on whether
the Board would recommend to the stockholders approval of Proposal No. 2. One of
Aspen's directors recommends that the stockholders vote against the proposal,
and three directors did not make any recommendation with regard to the proposal.
R.V. Bailey, the Company's Chairman and Chief Executive Officer believes
that the Company should continue to explore potential business opportunities.
Based on conversations with various advisors, and preliminary discussions with
third parties, Mr. Bailey believes that Aspen, as a company submitting reports
pursuant to the Securities and Exchange Act of 1934 and with an existing
stockholder base, can offer value to third parties in potential business
transactions. He believes this value may be enhanced because after the
distribution to be made to stockholders from the proceeds of the sale of the
Company's California assets Aspen will retain a portion of its existing cash and
cash equivalent assets. Public shell companies potentially have value in merger
and business combination transactions in excess of the value of their cash
assets. Mr. Bailey believes the Company can minimize its expenditures while
trying to identify an appropriate business opportunity or transaction. As such,
Mr. Bailey believes that Aspen likely will be able to identify a business
opportunity that will offer Aspen's stockholders potential long term value. Mr.
Bailey believes that this long term value has the potential to exceed the value
offered to stockholders through the dissolution process. Therefore, Mr. Bailey
believes that it is not in Aspen's or its stockholders' best interest to
dissolve the Company, he recommends stockholders vote against Proposal No. 2,
and has informed the Board of Directors that he intends to vote against Proposal
No. 2.
Messrs. Cohan (President and director), Hensman (Chief Financial Officer
and director) and Imperato (director) are continuing to evaluate whether they
believe the Company can identify and execute on a business opportunity that may
offer long term value to the Company's stockholders, and as such neither has yet
reached a conclusion on whether Proposal No. 2 should be submitted to the
stockholders with or without a recommendation. Although Messrs. Hensman,
Imperato, and Cohan do not believe the Company should engage in an open ended
search for a business opportunity or transaction, they believe that subject to
the Company's financial resources the Company in the near term should continue
to attempt to identify a business opportunity or transaction. As of the date of
this Proxy Statement Messrs. Hensman, Cohan and Imperato have not informed the
Company whether each intends to support or oppose Proposal No. 2.
30
While, the Board of Directors as a whole does not currently have any
immediate plans to dissolve the Company, and certain of the Board members do not
recommend that Proposal No. 2 be approved, the Board of Directors believes it is
appropriate to submit a proposal to the Company's stockholders that, if
approved, would give the Board the authority to dissolve the Company should the
Board of Directors be unable to identify an appropriate business opportunity or
corporate transaction and later believe it is in the Company's best interests to
do so.
Principal Provisions of a Plan of Liquidation Should the Company Be Dissolved
Should the Company be dissolved, such dissolution will follow a plan of
liquidation, which will be approved and adopted by the Board of Directors at a
later date. The material features of a plan of liquidation are summarized below.
This summary does not purport to be complete and is subject in all respects to
the provisions of, and is qualified in its entirety by the plan of liquidation
that is ultimately approved and adopted by the Board of Directors.
Once a plan of liquidation is effective, the steps below will be completed
at such times as our Board of Directors, in its absolute discretion, deems
necessary, appropriate or advisable. A certificate of dissolution will be filed
with the State of Delaware pursuant to Section 275 of the Delaware General
Corporation Law ("DGCL"). Our dissolution will become effective, in accordance
with Section 275 of the DGCL, upon proper filing of the certificate of
dissolution with the Secretary of State of Delaware (the "Dissolution Date").
Pursuant to the DGCL, we will continue to exist for three years after the
Dissolution Date or for such longer period as the Delaware Court of Chancery
shall direct, for the purpose of prosecuting and defending suits, whether civil,
criminal or administrative, by or against us, and enabling us to settle and
close our business, to dispose of and convey our property, to discharge our
liabilities and to distribute to our stockholders any remaining assets, but not
for the purpose of continuing the business for which we were organized.
Moreover, we will continue after such period for the purpose of pending legal
actions.
From and after the Dissolution Date, we will not engage in any business
activities except to the extent necessary to preserve the value of our assets,
wind down our business and affairs, and distribute our assets in accordance with
the plan of liquidation and pursuant to Section 278 of the DGCL.
Our officers will negotiate and consummate the sales of all of our
remaining assets and properties insofar as our Board of Directors deems such
sales necessary, appropriate or advisable. It is not anticipated that any
further stockholder votes will be solicited with respect to the approval of the
specific terms of any particular sales of assets approved by our Board of
Directors. Such liquidation of our assets will be in accordance with any
applicable provision of the DGCL, including Sections 280 or 281.
If the Company is dissolved, we may, from time to time, make liquidating
distributions of our remaining funds and unsold assets, if any, in cash or in
kind, to the holders of record of shares of our common stock at the close of
business on the Dissolution Date. Such liquidating distributions, if any, will
be made to the holders of shares of our common stock on a pro rata basis; all
determinations as to the time for and the amount and kind of distributions will
be made by our Board of Directors, in its absolute discretion. No assurances can
be given that available cash and amounts received on the sale of assets will be
adequate to provide for our obligations, liabilities, expenses and claims, and
to make any cash distributions to our stockholders. Thus, our Board of Directors
is currently unable to predict the precise nature, amount or timing of any
31
distributions. The actual nature, amount and timing of all distributions will be
determined by our Board of Directors, in its discretion, and will depend in part
upon our ability to convert our remaining assets into cash and pay and settle
our remaining liabilities and obligations.
If the Board of Directors elects to dissolve the Company, our Board of
Directors believes that we will have sufficient assets to pay our current and
future obligations and to consider making distributions to our stockholders, but
there can be no assurance to that effect. The amount of any distributions will
depend on a number of factors, including, but not limited to, the accounts
payable and our other liabilities existing on the date of the approval and
adoption of the plan of liquidation, our operating expenses that accrue
following approval and adoption of the plan of liquidation and the amount of any
claims that may be asserted against us. The expenses of our operations will
include professional fees and other expenses of liquidation. In addition, the
actual amount, if any, to be received by stockholders upon dissolution will
depend upon any accrual we may have to make for contingent liabilities or
contractual claims (if any).
As of June 30, 2009, the Company had accrued unpaid liabilities of
approximately $2,341,315, and total assets of approximately $11,817,419. The
Company intends to distribute substantially all of the net, after-tax proceeds
from the sale of its California assets to our stockholders, once that figure can
be definitively determined (which is expected to be in early November 2009 with
the distribution likely being paid in December 2009). After this distribution
the Company's cash and cash equivalent assets will likely be approximately $2.3
million. If the Company initiates the dissolution process the Company expects it
would reduce its liabilities and cash and other liquid assets to zero in
connection with the winding down of its business.
Federal Securities Laws Reporting Obligations
As a result of the sale of our California assets to Venoco we do not
currently have any active business operations. However, the Company still has a
class of securities registered under the Securities Exchange Act of 1934 and the
Company continues to have an obligation to submit periodic reports to the
Securities and Exchange Commission and comply with other obligations imposed by
the federal securities laws. The Company does not currently have any intention
to attempt to terminate its reporting (or other) obligations under the federal
securities laws. Even if Proposal No. 2 is approved the Company expects to
continue to comply with its obligations under the federal securities laws until
the dissolution process is complete or the Company otherwise has no reporting
obligations under the federal securities laws.
Our stock is currently traded on the OTC Bulletin Board under the symbol
"ASPN.OB." If the Company is dissolved, we would close our stock transfer books
on the Dissolution Date and at such time cease recording stock transfers and
issuing stock certificates (other than replacement certificates). Accordingly,
it is expected that trading in shares of our common stock would likely cease on
and after such date.
Expenses and Indemnification
In connection with and for the purpose of implementing and assuring
completion of the dissolution, we may, in the absolute discretion of our Board
of Directors, pay any brokerage, agency, legal and other fees and expenses of
persons rendering services to us in connection with the collection, sale,
exchange or other disposition of our property and assets and the implementation
of the Board's plan of liquidation, including, but not limited to, the payment
of retainer fees to any such persons.
We will continue to indemnify our officers, directors, employees and agents
in accordance with Article VIII of our Restated Certificate of Incorporation,
Section 5.01 of our Amended and Re-Stated By-laws, the indemnification
32
agreements entered into between the Company and its officers and directors, and
any contractual arrangements for actions taken in connection with the plan of
liquidation and the winding down of the Company's affairs. Our Board of
Directors, in its absolute discretion, is authorized to obtain and maintain
insurance as may be necessary, appropriate or advisable to cover any such
obligations. Immediately prior to the completion of the distribution or
liquidation of all of our assets in the winding down of our affairs (the
Effective Time"), we will obtain and fully pay for insurance policies that
provide coverage for events occurring on or before the Effective Time with a
claims period of six years from and after the Effective Time from insurance
carriers with the same or better credit ratings as our current insurance
carriers with respect to directors' and officers' liability insurance with
benefits and levels of coverage that are no less favorable than those on our
existing policies.
Sales of the Company's Assets
If the Company is dissolved, the Board of Directors has the authority to
sell all or substantially all our remaining assets following our dissolution.
Assuming we do not identify another business opportunity, our only remaining
assets will be cash, cash equivalents and investments, accounts receivable,
potential tax refunds, property, and equipment, and certain other assets.
From and after the Dissolution Date, sales of our remaining assets will be
made on such terms as are approved by our Board of Directors and may be
conducted by competitive bidding or privately negotiated sales. The prices at
which we will be able to sell our remaining various assets will depend largely
on factors beyond our control, including, but not limited to, the compatibility
of our intellectual property rights with the most likely purchasers of such
rights, the extent to which such intellectual property rights are viewed as
valuable by such companies and the condition of financial markets and the
availability of financing to prospective purchasers of assets. In addition, we
may not obtain as high a price for our remaining assets as we might secure if we
were not in liquidation.
Contingent Liabilities; Contingency Reserve
Under the DGCL, if we dissolve the Company, we are required to pay or
provide for payment of all of our liabilities and obligations. Following the
Dissolution Date, we will pay, to the extent of our funds and assets available,
all expenses and fixed and other known liabilities, or set aside as a
contingency reserve, assets which we believe to be adequate for payment thereof
(the "Contingency Reserve").
We are currently unable to estimate with precision the amount of any
Contingency Reserve that may be required, but any such amount will be deducted
before the determination of amounts available for distribution to stockholders.
The actual amount of any Contingency Reserve will be based upon estimates and
opinions of management and our Board of Directors and derived from review of our
estimated operating expenses, including, but not limited to, anticipated
compensation payments, estimated legal and accounting fees, rent, payroll and
other taxes payable, miscellaneous office expenses, other expenses accrued in
our financial statements, and contractual liability claims. There can be no
assurance that the Contingency Reserve in fact will be sufficient. After the
liabilities, expenses and obligations for which the Contingency Reserve had been
established have been satisfied in full, we will distribute to our stockholders
any remaining portion of the Contingency Reserve. The remaining portion of the
Contingency Reserve will be paid to the holders of shares of our common stock on
a pro rata basis.
33
Regulatory Approvals
No United States federal or state regulatory requirements must be complied
with or approvals obtained in connection with a dissolution.
Absence of Appraisal Rights
Under Delaware law, our stockholders are not entitled to appraisal rights
for their shares of our common stock in connection with the transactions
contemplated by a dissolution or to any similar rights of dissenters under
Delaware law.
Potential Liability of Stockholders
Under the DGCL, in the event that we dissolve and we fail to create
adequate reserves for liabilities, or should such reserves be insufficient to
satisfy the aggregate amount ultimately found payable in respect of our expenses
and liabilities, each stockholder could be held liable for amounts due to
creditors to the extent of the amounts that such stockholder received from us.
Each stockholder's exposure to liability is limited to his, her or its pro rata
portion of the amounts due to creditors and is capped, in any event, at the
amount of the distribution actually received by such stockholder. In addition, a
creditor could seek an injunction to prevent us from making distributions, which
could delay and/or diminish distributions to stockholders.
Material U.S. Federal Income Tax Consequences
The following discussion is a general summary of the material U.S. Federal
income tax consequences of a dissolution of the Company or the receipt of
non-liquidating distributions, but does not purport to be a complete analysis of
all the potential tax effects. EACH STOCKHOLDER IS ADVISED TO CONSULT HIS, HER
OR ITS TAX ADVISOR FOR ACTUAL TAX CONSEQUENCES TO HIM, HER OR IT OF THE PLAN OF
LIQUIDATION OR THE RECEIPT OF NON-LIQUIDATING DISTRIBUTIONS.
The discussion addresses neither the tax consequences that may be relevant
to particular categories of investors subject to special treatment under certain
federal income tax laws (such as dealers in securities, banks, insurance
companies, tax-exempt organizations, and foreign individuals and entities) nor
any tax consequences arising under the laws of any state, local or foreign
jurisdiction. The discussion is based upon the Code, Treasury Regulations, the
IRS rulings and judicial decisions now in effect, all of which are subject to
change at any time; any such changes may be applied retroactively. The following
discussion has no binding effect on the IRS or the courts. Distributions may
occur at various times and in more than one tax year, and it is possible that no
distribution will be made. No assurances can be given that the tax treatment
described herein will remain unchanged at the time of such distributions. No
ruling has been requested from the IRS with respect to the anticipated tax
treatment of the dissolution or the receipt of non-liquidating distributions,
and we will not seek an opinion of counsel with respect to the anticipated tax
treatment. The failure to obtain a ruling from the IRS or an opinion of counsel
results in less certainty that the anticipated tax treatment summarized herein
will be obtained. If any of the conclusions stated herein proves to be
incorrect, the result could be increased taxation at the Company and/or
stockholder level, thus reducing the benefit to our stockholders and us from the
liquidation or from non-liquidating distributions.
Consequences to the Company. If, and/or when, the Board of Directors
approves a plan of liquidation and until the liquidation is complete, we will
continue to be subject to tax on our taxable income. We will generally recognize
34
income, gain or loss on sales of our property or collection of claims pursuant
to the plan of liquidation. Upon any distribution of property to our
stockholders, we will generally recognize gain or loss as if such property was
being sold to our stockholders at its fair market value.
Consequences to our stockholders. If the Company is dissolved, a
stockholder generally will recognize gain or loss equal to the difference
between (i) the sum of the amount of cash and the fair market value of any
property distributed to such stockholder, if any, less any known liabilities
assumed by the stockholder or to which the distributed property is subject, and
(ii) such stockholder's tax basis for his, her or its shares of our common
stock. A stockholder's tax basis in his or her shares will depend upon various
factors, including, but not limited to, the stockholder's cost and the amount
and nature of any distributions received with respect thereto. A stockholder's
gain or loss will be computed on a "per share" basis. We expect to make more
than one liquidating distribution to our stockholders, each of which will be
allocated proportionately to each share of our common stock owned by a
stockholder. The value of each liquidating distribution will be applied against
and reduce a stockholder's tax basis in his or her shares of our common stock.
Gain will be recognized by reason of a liquidating distribution only to the
extent that the aggregate value of such distributions received by a stockholder
with respect to a share exceeds his, her or its tax basis for that share. Any
loss will generally be recognized only when the final distribution from us has
been received and then only if the aggregate value of the liquidating
distributions with respect to a share is less than the stockholder's tax basis
for that share. If a stockholder is required to return any distribution, any
payments by a stockholder in satisfaction of any liability not covered by the
Contingency Reserve, which is described in greater detail elsewhere in this
Proxy Statement, generally would produce a loss in the year paid, which loss
could fail to cause a reduction in taxes payable in an amount equal to the
amount of the taxes paid on amounts previously distributed. Gain or loss
recognized by a stockholder will generally be treated as capital gain or loss
provided the shares are held as capital assets. Such gain or loss will be
subject to tax at the short-term or long-term capital gain tax rate, depending
on the period for which such shares are held by the stockholder. Long-term
capital gain of non-corporate taxpayers may be subject to more favorable tax
rates than ordinary income or short-term capital gain. The deductibility of
capital losses is subject to various limitations. We will provide our
stockholders and the IRS with a statement each year of the amount of cash and
the fair market value of any property distributed to the stockholders during
that year, at such time and in such manner as required by the Treasury
Regulations.
Consequences of Non-Liquidating Distributions. If the Company is not
dissolved and we make a non-liquidating distribution to our stockholders, the
amount they receive will be treated as a dividend to the extent of the
stockholder's share of our current and accumulated earnings and profits, if any,
as determined under federal income tax principles. Such a dividend would be
includible in the stockholder's gross income and no current loss would be
recognized. Currently, dividends are taxable at a maximum rate for individual
stockholders of 15% if certain holding period and other requirements are met. We
anticipate that any amount distributed in excess of our current earnings and
profits will be treated as capital gain from the sale of our stock.
To the extent that a corporate stockholder is treated as receiving a
dividend, as described above, it may be eligible for a dividends received
deduction (subject to applicable limitations). In addition, any amount received
by a corporate stockholder that is treated as a dividend may constitute an
"extraordinary dividend" under Section 1059 of the Code, thereby resulting in a
reduction of tax basis or possible gain recognition in an amount equal to the
non-taxed portion of the dividend. Corporate stockholders should consult their
own tax advisors as to the application of Section 1059 of the Code to the tax
consequences of a dividend.
35
Back-Up Withholding. Unless a stockholder complies with certain reporting
and/or Form W-9 certification procedures or is an exempt recipient under
applicable provisions of the Code and Treasury Regulations, he, she or it may be
subject to back-up withholding tax with respect to any payments received
pursuant to the dissolution or from the non-liquidating distributions. The
back-up withholding tax is currently imposed at a rate of 28%.
Back-up withholding generally will not apply to payments made to some
exempt recipients such as a corporation or financial institution or to a
stockholder who furnishes a correct taxpayer identification number or provides a
certificate of foreign status and provides certain other required information.
If back-up withholding applies, the amount withheld is not an additional tax,
but is credited against the stockholder's U.S. federal income tax liability.
Taxation of Non-United States Stockholders. Foreign corporations or persons
who are not citizens or residents of the United States should consult their tax
advisors with respect to the U.S. and non-U.S. tax consequences of the
dissolution or the receipt of non-liquidating distributions.
State and Local Income Tax Consequences. Stockholders may also be subject
to liability for state and local taxes with respect to the receipt of
liquidating or non-liquidating distributions. State and local tax laws may
differ in various respects from federal income tax law. Stockholders should
consult their tax advisors with respect to the state and local tax consequences
of the dissolution or the receipt of non-liquidating distributions.
The foregoing summary of certain income tax consequences is included for
general information only and does not constitute legal advice to any
stockholder. The tax consequences of a dissolution or the receipt of
non-liquidating distributions may vary depending upon the particular
circumstances of the stockholder. We recommend that each stockholder consult
his, her or its own tax advisor regarding the tax consequences of the
dissolution or the receipt of non-liquidating distributions.
Vote Required and Board Recommendation
Proposal 2 must be approved by the affirmative vote of the holders of a
majority of Aspen's outstanding common stock.
As described above, the Board of Directors did not reach an agreement as to
whether it recommends stockholders vote For, Against or Abstain from voting on
the proposal to grant Aspen's Board of Directors the authority, in its
discretion, to dissolve the Company, as such the proposal is being submitted
without a recommendation from the Board as a whole.
INDEPENDENT PUBLIC ACCOUNTANTS
Effective November 3, 2008 Gordon, Hughes, & Banks, LLP ("GH&B") resigned
as the independent registered accounting firm for Aspen. GH&B recently entered
into an agreement with Eide Bailly LLP ("Eide Bailly"), pursuant to which Eide
Bailly acquired the operations of GH&B. Certain of the professional staff and
shareholders of GH&B joined Eide Bailly either as employees or partners of Eide
Bailly and will continue to practice as members of Eide Bailly. On November 3,
2008, the Company's Board of Directors approved the engagement of Eide Bailly as
the Company's independent registered public accounting firm.
36
A representative of Eide Bailly is expected to be present at the Annual
Meeting, and assuming the representative is present will have an opportunity to
make a statement if such representative desires to do so, and will be available
to respond to appropriate questions from stockholders.
(a) Audit Fees.
GH&B billed us aggregate fees for audit and tax services in the amount of
approximately $46,336 for the fiscal year ended June 30, 2008 and $43,696 for
the fiscal year ended June 30, 2009. Eide Bailly billed us aggregate fees for
audit services in the amount of approximately $11,845 for the fiscal year ended
June 30, 2009.
These amounts were billed for professional services that GH&B and Eide
Bailly provided for the audit of our annual financial statements, review of the
financial statements included in our report on 10-Q and other services typically
provided by an accountant in connection with statutory and regulatory filings or
engagements for those fiscal years.
(b) Audit-Related Fees.
GH&B billed us aggregate fees in the amount of $0 and $515 for the fiscal
years ended June 30, 2009 and 2008 for assurance and related services that were
reasonably related to the performance of the audit or review of our financial
statements.
Eide Bailly billed us aggregate fees in the amount of $0 for the fiscal
year ended June 30, 2009 for assurance and related services that were reasonably
related to the performance of the audit or review of our financial statements.
(c) Tax Fees.
GH&B billed us aggregate fees in the amount of approximately $0 for the
fiscal year ended June 30, 2009, and $7,395 for the fiscal year ended June 30,
2008, for tax compliance services.
Eide Bailly billed us aggregate fees in the amount of approximately $7,640
for the fiscal year ended June 30, 2009, for tax compliance services.
(d) All Other Fees.
GH&B billed us aggregate fees in the amount of $0 for the fiscal years
ended June 30, 2009 and 2008 for other fees.
Eide Bailly billed us aggregate fees in the amount of $0 for the fiscal
years ended June 30, 2009 for other fees.
(e) Audit Committee's Pre-Approval Practice.
Inasmuch as Aspen does not have an audit committee, Aspen's board of
directors performs the functions of its audit committee. Section 10A(i) of the
Securities Exchange Act of 1934 prohibits our auditors from performing audit
services for us as well as any services not considered to be "audit services"
unless such services are pre-approved by the board of directors (in lieu of the
audit committee) or unless the services meet certain de minimis standards.
37
The Board of Directors has adopted resolutions that provide that the Board
must:
Preapprove all audit services that the auditor may provide to us or any
subsidiary (including, without limitation, providing comfort letters in
connection with securities underwritings or statutory audits) as required
by ss.10A(i)(1)(A) of the Securities Exchange Act of 1934 (as amended by
the Sarbanes-Oxley Act of 2002).
Preapprove all non-audit services (other than certain de minimis services
described in ss.10A(i)(1)(B) of the Securities Exchange Act of 1934 (as
amended by the Sarbanes-Oxley Act of 2002) that the auditors propose to
provide to us or any of its subsidiaries.
The board of directors considers at each of its meetings whether to approve any
audit services or non-audit services. In some cases, management may present the
request; in other cases, the auditors may present the request. The board of
directors has approved Gordon, Hughes & Banks, LLP and Eide Bailly, LLP
performing our audit and tax services for the 2008 and 2009 fiscal years.
The percentage of the fees for audit, audit-related, tax and other services
were as set forth in the following table:
Eide Bailly, LLP Gordon Hughes & Banks LLP
Fiscal Year Ended June 30, Fiscal Year Ended June 30,
2009 2008 2009 2008
---------- ---------- ---------- ----------
Audit fees 61% 0% 100% 86%
Audit-related fees 0% 0% 0% 1%
Tax fees 39% 0% 0% 13%
All other fees 0% 0% 0% 0%
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DELIVERY OF DOCUMENTS TO STOCKHOLDERS SHARING AN ADDRESS
Only one Notice, and if applicable one Proxy Statement and annual report is
being delivered to stockholders sharing an address unless we have received
contrary instructions from one or more of the stockholders. Upon the written or
oral request of a stockholder, we will deliver promptly a separate Notice, and
if applicable a separate copy of the proxy statement and annual report to a
stockholder at a shared address to which a single copy was delivered.
Stockholders desiring to receive a separate copy in the future may contact us
through our offices at 2050 South Oneida Street, Suite 208, Denver, CO 80224, or
by telephone: (303) 639-9860.
Stockholders who share an address but are receiving multiple copies of the
proxy statement and/or annual report may contact us through our offices at 2050
South Oneida Street, Suite 208, Denver, CO 80224, or by telephone: (303)
639-9860 to request that a single copy be delivered.
PROPOSALS FROM STOCKHOLDERS
Aspen expects to hold its next annual meeting of shareholders (the "2010
Meeting") on or about November 20, 2010. If this date is advanced or delayed by
more than 30 days, Aspen will, as required by Rule 14a-5(f), inform shareholders
of the change by including a notice under Item 5 of its next quarterly report on
Form 10-Q or, if impracticable, another means reasonably calculated to inform
shareholders.
Proposals from stockholders intended to be present at the 2010 Meeting
should be addressed to Aspen Exploration Corporation, Attention: Corporate
Secretary, 2050 South Oneida Street, Suite 208, Denver, CO 80224, and we must
receive the proposals by June 10, 2010. Upon receipt of any such proposal, we
shall determine whether or not to include any such proposal in the Proxy
Statement and proxy in accordance with applicable law. It is suggested that
stockholders forward such proposals by Certified Mail-Return Receipt Requested.
After June 10, 2010, any stockholder proposal submitted outside the process of
Rule 14a-8 will be considered to be untimely.
ANNUAL REPORT TO STOCKHOLDERS
This proxy statement is being accompanied by our Annual Report to
stockholders on Form 10-K for the year ended June 30, 2009. The annual report to
stockholders includes our audited financial statements. Our Annual Report on
Form 10-K for the year ended June 30, 2009, and other reports filed under the
Securities Exchange Act of 1934, are available to any stockholder at no cost
upon request to our offices at 2050 South Oneida Street, Suite 208, Denver, CO
80224, or by telephone: (303) 639-9860, or through the Internet at www.sec.gov.
INCORPORATION OF INFORMATION BY REFERENCE
The following information is incorporated by reference into this proxy
statement from our annual report on Form 10-K for the year ended June 30, 2009,
which report is included in our annual report to stockholders that accompanies
this Proxy Statement:
o Our Management's Discussion and Analysis of Financial Condition and Results
of Operations in Item 7 of our annual report on Form 10-K (included in our
annual report to stockholders that accompanies this Proxy Statement),
entitled "Item 7. Management's Discussion and Analysis of Financial
Conditions or Plan of Operation."
39
o Our financial statements attached to our annual report on Form 10-K
(included in our annual report to stockholders that accompanies this Proxy
Statement).
OTHER MATTERS
Management does not know of any other matters to be brought before the
meeting. Should any other matter requiring a vote of stockholders arise at the
meeting, the persons named in the proxy will vote the proxies in accordance with
their best judgment.
By Order of the Board of Directors:
ASPEN EXPLORATION CORPORATION
R.V. Bailey, Chief Executive Officer
40
ASPEN EXPLORATION CORPORATION
2050 South Oneida Street, Suite 208
Denver, CO 80224
PROXY This Proxy is Solicited on Behalf of the Board of Directors
The undersigned hereby appoints R.V. Bailey and Kevan B. Hensman, or either
one of them, as Proxy, each with the power to appoint his substitute, and hereby
authorizes them to vote, as designated below, all of the shares of Common Stock
of ASPEN EXPLORATION CORPORATION held of record by the undersigned on October 2,
2009, at the Annual Meeting of Stockholders to be held on November 20, 2009, and
at any adjournments or postponements thereof.
1. ELECTION OF DIRECTORS
FOR all nominees listed below ___ WITHHOLD AUTHORITY ____ or (Except as
marked to the contrary below) to vote for all nominees listed below:
(INSTRUCTION: To withhold authority to vote for any individual nominee mark
the box next to the nominee's name below.)
R.V. Bailey ___
Robert A. Cohan ___
Kevan B. Hensman ___
Douglas P. Imperato ___
2. APPROVAL OF RESOLUTION GRANTING THE BOARD OF DIRECTORS THE AUTHORITY IN ITS
SOLE DISCRETION TO DISSOLVE ASPEN EXPLORATION CORPORATION, BUT SUCH
DISCRETION MUST BE EXERCISED WITHIN TWELVE MONTHS.
FOR: _______ AGAINST: _______ ABSTAIN: _______
This proxy, when properly executed, will be voted in the manner directed herein
by the undersigned shareholder. If no direction is made, this proxy will vote
FOR each of the directors and abstain from voting on proposal no. 2
(dissolution).
Please sign exactly as name appears below. When shares are held by joint
tenants, both should sign. When signing as attorney, as executor, administrator,
trustee, or guardian, please give full title as such. If a corporation, please
sign in full corporate name by President or other authorized officer. If a
partnership, please sign in partnership name by authorized person.
___________________________________ Please check here if you plan to
Signature attend the Annual Meeting: [ ]
Date: _______________________, 2009
___________________________________
Signature if held jointly