Amended Statement of Ownership: Solicitation (sc 14d9/a)
December 07 2020 - 4:06PM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE
14D-9
(Rule 14d-101)
SOLICITATION/RECOMMENDATION STATEMENT
UNDER SECTION 14(d)(4) OF THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 2)
THE GOLDFIELD
CORPORATION
(Name of Subject Company)
THE GOLDFIELD
CORPORATION
(Name of Person Filing Statement)
Common Stock,
par value $0.10 per share
(Title of Class of Securities)
381370105
(CUSIP Number
of Class of Securities)
Stephen R. Wherry
Acting Co-Chief Executive Officer
The Goldfield Corporation
1684 W. Hibiscus Boulevard
Melbourne, Florida 32901
(321) 724-1700
(Name, address and telephone number of person authorized to receive notices and communications
on behalf of the persons filing statement)
With copies to:
Robert S. Matlin, Esq.
K&L Gates LLP
599
Lexington Avenue
New York, New York 10022
(212) 536-4066
This Amendment No. 2 (Amendment No. 2) amends Item 8 in the
Solicitation/Recommendation Statement on Schedule 14D-9 filed by The Goldfield Corporation, a Delaware corporation (Goldfield or the Company), with the Securities and Exchange Commission on December 1, 2020
(as amended and supplemented from time to time, and including the documents annexed thereto or incorporated therein the Schedule 14D-9). The Schedule 14D-9 relates to the tender offer by FR Utility Services Merger Sub, Inc., a
Delaware corporation (Acquisition Sub) and a wholly owned subsidiary of FR Utility Services, Inc., a Delaware corporation (FR Utility), which is an affiliate of First Reserve Fund XIV, L.P., a Cayman Islands
limited partnership, to purchase all of the issued and outstanding shares of Goldfields common stock, par value of $0.10 per share (the Shares), at a purchase price equal to $7.00 per Share, net to the seller in cash without
interest and less any applicable withholding taxes (the Offer Price), upon the terms and conditions set forth in the offer to purchase, upon the terms and subject to the conditions set forth in the in the offer to purchase, dated
December 1, 2020 (together with any amendments or supplements thereto, the Offer to Purchase), a copy of which is attached as Exhibit (a)(1)(A), and in the related letter of transmittal (together with any amendments or
supplements thereto, the Letter of Transmittal and, together with the Offer to Purchase, the Offer), a copy of which is attached as Exhibit (a)(1)(B).
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. 2. This Amendment No. 2 should be read together with the Schedule 14D-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 restating the section titled Legal Proceedings in its entirety as
follows:
On December 4, 2020, Shiva Stein, a purported stockholder of the Company, filed a lawsuit against the Company and members of the
Companys board of directors (the Board) (together, Defendants) in the United States District Court for the District of Delaware captioned Shiva Stein v. The Goldfield Corporation, David P. Bicks,
Harvey C. Eads, Jr., John P. Fazzini, Danforth E. Leitner, and Stephen L. Appel, Case No. 1:20-cv-01656-UNA (the Stein Complaint). The Stein Complaint alleges that the Schedule 14D-9 omits material information or
contains misleading disclosures and that, as a result, (a) all defendants violated Section 14(e) of the Exchange Act, (b) all defendants violated Section 14(d)(4) of the Exchange Act, and (c) each member of the Board
violated Section 20(a) of the Exchange Act as control persons. As relief, the Stein Complaint seeks, among other things, (1) to enjoin the proceeding and consummation of the Offer and the Merger unless or until the Defendants file revised
disclosures; (2) in the event the Offer and the Merger are consummated, rescission, setting it aside, or awarding rescissory damages; (3) an accounting of all damages suffered; and (4) plaintiffs attorneys and
experts fees and expenses. Goldfield believes the claims asserted in the complaint are without merit.
Additional complaints may be filed against
Goldfield, the Board, FR Utility and/or Acquisition Sub in connection with the transactions contemplated by the Merger Agreement, the Schedule TO and the Schedule 14D-9.
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Schedule 14D-9 is true, complete and correct.
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THE GOLDFIELD CORPORATION
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By:
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/s/ STEPHEN R. WHERRY
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Name: Stephen R. Wherry
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Title: Acting Co-Chief Executive Officer, Senior Vice President, Chief Financial Officer, Treasurer
and Assistant Secretary
(Co-Principal Executive Officer and Principal Financial and Accounting
Officer)
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Dated: December 7, 2020
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