- Amended Statement of Ownership: Solicitation (SC 14D9/A)
15 Maggio 2012 - 10:29PM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
SCHEDULE 14D-9
(Rule 14d-101)
SOLICITATION/RECOMMENDATION STATEMENT UNDER SECTION 14(d)(4)
OF THE
SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 9)
COMVERGE, INC.
(Name of Subject Company)
COMVERGE,
INC.
(Name of Person(s) Filing Statement)
Common Stock, $0.001 Par Value Per Share
(Title of Class of Securities)
205859101
(CUSIP Number of Class of Securities)
Matthew H. Smith
Senior Vice President, General Counsel and Secretary
Comverge, Inc.
5390 Triangle Parkway, Suite 300
Norcross, Georgia
30092
(678) 392-4954
(Name, Address and Telephone Number of Person Authorized to Receive Notice and
Communications on Behalf of the Person(s) Filing Statement)
With copies
to:
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Steven M. Tyndall, Esq.
Baker Botts L.L.P.
98 San Jacinto Boulevard
Suite 1500
Austin,
TX 78701
(512) 322-2500
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Thomas L. Hanley, Esq.
Stradley Ronon Stevens & Young, LLP
1250 Connecticut Avenue, NW
Suite 500
Washington, DC 20036
(202) 292-4525
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Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.
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Explanatory Note
This Amendment No. 9 (
Amendment No. 9
) amends Item 8 in the Solicitation/Recommendation Statement on Schedule 14D-9 filed with the U.S. Securities and Exchange Commission and
dated April 12, 2012, by Comverge, Inc., a Delaware corporation (the
Company
or
Comverge
), (as amended from time to time, the
Schedule 14D-9
). The Schedule 14D-9 relates to the tender
offer by Peak Merger Corp., a Delaware corporation (
Purchaser
), which is a subsidiary of Peak Holding Corp., a Delaware corporation (
Parent
), to purchase all of the Companys outstanding shares of common
stock (the
Shares
) for $1.75 per Share, net to the selling stockholder in cash, without interest thereon and subject to any withholding of taxes required by applicable law, upon the terms of and subject to the conditions set forth
in the Offer to Purchase of Parent and Purchaser dated April 11, 2012, and in the related Letter of Transmittal, as each may be amended or supplemented from time to time.
Except as otherwise set forth below, the information set forth in the Schedule 14D-9 remains unchanged and is incorporated herein by reference as relevant to items in this Amendment No. 9.
Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Schedule 14D-9.
Item 8.
Additional Information.
Item 8 of the Schedule 14D-9 is hereby amended and supplemented by adding the following subsection captioned Expiration of the Subsequent Offering Period and Final Completion of the Offer and
Merger:
Expiration of the Subsequent Offering Period and Final Completion of the Offer and Merger
The Subsequent Offering Period expired at 11:59 p.m., New York City time, on Monday, May 14, 2012 (the
Subsequent Offering Expiration
Time
). Based on information from the depositary, as of the Subsequent Offering Expiration Time, a total of 17,972,755 Shares were validly tendered and not withdrawn prior to the Expiration Date. These Shares represent approximately 65.0%
of the outstanding Shares. Purchaser has accepted for payment all Shares tendered and not validly withdrawn during the initial offering period, as extended, and all Shares validly tendered during the Subsequent Offering Period, and the consideration
for all such Shares either has been paid or promptly will be paid.
On May 15, 2012, pursuant to the terms of the Merger Agreement,
Purchaser exercised its top-up option to purchase, at a per share price equal to the Offer Price, 69,310,020 Top-Up Shares, which brought Purchasers ownership of the Companys common stock, when combined with the Shares acquired by
Purchaser prior to the Expiration Date, to more than 90% of the outstanding Shares after such purchase. The aggregate purchase price of $121,292,535 for the Top-Up Shares was paid by Purchaser partially in cash, in an amount equal to the aggregate
par value of the Top-Up Shares, and partially by a promissory note, for the remaining amount. The Company offered and sold the Top-Up Shares as a private placement pursuant to an exemption from registration provided by Section 4(2) of the
Securities Act of 1933, as amended.
In accordance with the Merger Agreement, Parent and Purchaser intend to effect a short-form merger
without the need for a meeting of, or any action by, the Companys stockholders as promptly as practicable. In the Merger, Purchaser will merge with and into the Company, with the Company continuing as the surviving corporation and a
wholly-owned subsidiary of Parent. At the Effective Time, each outstanding Share not tendered in the Offer (other than treasury Shares, Shares held by Parent, Purchaser or any of their subsidiaries or Shares held by stockholders who have and
properly exercise appraisal rights under applicable provisions of the DGCL) will be cancelled and convert into the right to receive a cash payment in an amount equal to the Offer Price. The Colbent Corporation, acting as the paying agent for the
Merger, will mail to the remaining former stockholders of the Company materials necessary to exchange their former Shares for such payment. May 15, 2012 is the last day Shares will trade on the NASDAQ Global Market.
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Statement is true, complete and correct.
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Comverge, Inc.
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By:
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/s/ R. Blake Young
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Name:
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R. Blake Young
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Title:
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President and Chief Executive Officer
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Dated: May 15, 2012
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