- Filing of certain prospectuses and communications in connection with business combination transactions (425)
April 20 2010 - 3:08PM
Edgar (US Regulatory)
Filed by Apache Corporation
Pursuant to Rule 425 of the Securities Act of 1933
and deemed filed pursuant to Rule 14a-12
of the Securities Exchange Act of 1934
Subject Company: Mariner Energy, Inc.
Commission File No. 1-32747
The following excerpts of Section 1.6 and Section 1.9 from the Merger Agreement are
being provided for the convenience of our investors. Please refer to the complete Merger
Agreement dated April 14, 2010, filed as Exhibit 2.1 to our Form 8-K filed with the Securities
and Exchange Commission (SEC) on April 16, 2010, available on the SECs website at
www.sec.gov.
Company
means Mariner Energy, Inc.
Merger Sub
means ZMZ Acquisitions LLC, a wholly owned subsidiary of Parent.
Parent
means Apache Corporation.
Share
means each issued and outstanding share of common stock, par value $.0001 per
share, of the Company.
Section 1.6
Conversion of Securities
. At the Effective Time, by virtue of the Merger
and without any action on the part of Merger Sub, the Company or the holders of any of the
Shares:
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(a)
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Each Share issued and outstanding immediately prior to the Effective Time (other than
any Shares to be canceled pursuant to Section 1.6(b) and any Dissenting Shares (as herein
defined)) shall be canceled and shall be converted automatically into the right to receive,
at the election of the holder as provided in and subject to Sections 1.9 and 1.10, either
(i) the Per Share Stock Consideration, (ii) the Per Share Cash Consideration or (iii) the
Per Share Mixed Consideration (together, the
Merger Consideration
), payable, without
interest, to the holder of such Share, upon surrender, in the manner provided in Section
1.10, of the certificate that formerly evidenced such Share. As of the Effective
Time, all such Shares shall no longer be outstanding and shall automatically be
canceled and retired and shall cease to exist, and each holder of a Certificate
representing any such Shares shall cease to have any rights with respect thereto,
except the right to receive (i) the Merger Consideration; (ii) any cash in lieu of
fractional shares of Parent Common Stock, if any, to be issued or paid in
consideration therefor upon surrender of such Certificate in accordance with
Section 1.10; and (iii) any dividends or distributions in accordance with Section
1.10(e);
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(b)
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Each Share held in the treasury of the Company and each Share owned by Merger Sub,
Parent or any direct or indirect wholly owned subsidiary of Parent or of the Company
immediately prior to the Effective Time shall be canceled without any conversion thereof
and no payment or distribution shall be made with respect thereto;
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(c)
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The Merger Consideration shall be adjusted to reflect fully the effect of any stock
split, reverse split, stock dividend, reorganization, recapitalization, consolidation,
exchange or other like change with respect to Parent Common Stock or Company Common Stock
occurring after the date hereof and prior to the Effective Time (including any dividend or
distribution on the Parent Common Stock or the Company Common Stock of securities
convertible into Parent Common Stock or Company Common Stock, as applicable); and
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(d)
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For purposes of this Agreement, each of the following terms has the meaning
set forth below:
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Cash Amount Per Share
shall mean $7.80 per share.
Deemed Shares Outstanding
means the total number of shares of the Company Common
Stock outstanding;
provided
,
however
, that regardless of the actual number of shares of the
Company Common Stock outstanding, in no event shall the Deemed Shares Outstanding exceed
the sum of (a) 102,045,275 (103,241,493 shares issued and outstanding on April 14, 2010
less 1,196,218 shares of restricted Company Common Stock granted by the Company pursuant to
the 2008 Long-Term Performance-Based Restricted Stock Program), (b) the aggregate number of shares of the Company Common Stock, if any, that are issued after the date hereof by the
Company upon the exercise of Options (all as disclosed in Section 2.3 and as exercised or
vested in accordance with their terms), (c) the number of shares approved by Parent for
grant pursuant to Section 4.1, (d) shares issued in accordance with Section 4.1 of the
Company Schedule, and (e) the number of shares with respect to which restrictions shall
lapse pursuant to Section 1.7(c).
Exchange Ratio
means 0.24347 shares of Parent Common Stock.
Per Share Cash Consideration
means $26.00 in cash.
Per Share Mixed Consideration
means the combination of (i) the Cash Amount Per Share
and (ii) 0.17043 shares of Parent Common Stock.
Per Share Stock Consideration
means a number of shares (which need not be a whole
number) of Parent Common Stock equal to the Exchange Ratio.
Total Cash Amount
means the product obtained by multiplying the Deemed Shares
Outstanding by the Cash Amount Per Share.
Section 1.9
Election Procedures; Allocation of Merger Consideration
.
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(a)
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An election form and other appropriate and customary transmittal materials (which shall
specify that delivery shall be effected, and risk of loss and title to the Certificates
theretofore representing shares of the Company Common Stock shall pass, only upon proper
delivery of such Certificates to the Exchange Agent or, in the case of Book-Entry Shares,
upon adherence to the procedures set forth therein) in such form as Parent shall specify
and as shall be reasonably acceptable to the Company (the
Election Form
) and pursuant to
which each holder of record of shares of the Company Common Stock as of the close of
business on the Election Form Record Date may make an election pursuant to this Section
1.9, shall be mailed at the same time as the Proxy Statement/Prospectus or at such other
time as the Company and Parent may agree (the date on which such mailing is commenced or
such other agreed date, the
Mailing Date
) to each holder of record of the Company Common
Stock as of the close of business on the record date for notice of the Company Stockholders
Meeting (the
Election Form Record Date
).
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(b)
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Each Election Form shall permit the holder (or the beneficial owner through
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appropriate and customary documentation and instructions), other than any holder of
Dissenting Shares, to specify (i) the number of shares of such holders Company
Common Stock with respect to which such holder elects to receive the Per Share
Mixed Consideration (
Mixed Consideration Election Shares
), (ii) the number of shares of such holders Company Common Stock with respect to which such holder
elects to receive Per Share Stock Consideration (
Stock Election Shares
), (iii)
the number of shares of such holders Company Common Stock with respect to which
such holder elects to receive the Per Share Cash Consideration (
Cash Election
Shares
), or (iv) that such holder makes no election with respect to such holders
Company Common Stock (
Non-Election Shares
). Any Company Common Stock with respect
to which the Exchange Agent has not received an effective, properly completed
Election Form on or before 5:00 p.m., New York time, on the 33rd day following the
Mailing Date (or such other time and date as the Company and Parent shall agree)
(the
Election Deadline
) (other than any shares of the Company Common Stock that
constitute Dissenting Shares as of such time) shall also be deemed to be
Non-Election Shares. Parent and the Company may agree to extend such deadline to
such other date as is agreed to by Parent and the Company, and the Company and
Parent shall make a public announcement of such new Election Deadline, if any.
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(c)
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Parent shall make available one or more Election Forms as may reasonably be requested
from time to time by all persons who become holders (or beneficial owners) of the Company
Common Stock between the Election Form Record Date and the close of business on the
business day prior to the Election Deadline, and the Company shall provide to the Exchange
Agent all information reasonably necessary for it to perform as specified herein.
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(d)
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Any such election shall have been properly made only if the Exchange Agent shall have
actually received a properly completed Election Form by the Election Deadline. An Election
Form shall be deemed properly completed only if accompanied by (i) one or more Certificates
(or customary affidavits and indemnification regarding the loss or destruction of such
Certificates or the guaranteed delivery of such Certificates) representing all certificated shares of the Company Common Stock covered by such Election Form or (ii) in the case of
Book-Entry Shares, any additional documents specified by the procedures set forth in the
Election Form, together with duly executed transmittal materials included in the Election
Form. Any Election Form may be revoked or changed by the person submitting such Election
Form prior to the Election Deadline. In the event an Election Form is revoked prior to the
Election Deadline, the shares of the Company Common Stock represented by such Election Form
shall become Non-Election Shares and Parent shall cause the Certificates, if any,
representing the Company Common Stock to be promptly returned without charge to the person
submitting the Election Form upon written request to that effect from the holder who
submitted the Election Form, except to the extent (if any) a subsequent election is
properly made with respect to any or all of the applicable shares of the Company Common
Stock. Subject to the terms of this Agreement and of the Election Form, the Exchange Agent
shall have reasonable discretion to determine whether any election, revocation or change
has been properly or timely made and to disregard immaterial defects in the Election Forms, and any good faith
decisions of the Exchange Agent regarding such matters shall be
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binding and conclusive. None of Parent, Merger Sub or the Exchange Agent shall be
under any obligation to notify any person of any defect in an Election Form.
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(e)
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Parent shall cause the Exchange Agent to allocate among the holders of the Company
Common Stock with rights to receive Merger Consideration in accordance with the Election
Form as follows:
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(i)
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Mixed Consideration
.
Each Mixed Consideration Election Share and each
Non-Election Share shall be converted into the right to receive the Per Share Mixed
Consideration.
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(ii)
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Cash Election Shares for more than Total Cash Amount
. If the product obtained
by multiplying (x) the number of Cash Election Shares by (y) the Per Share Cash
Consideration is greater than the Total Cash Amount less the aggregate cash paid to
holders of Mixed Consideration Election Shares and Non-Election Shares, then:
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(A)
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All Stock Election Shares shall be converted into the right to receive
the Per Share Stock Consideration,
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(B)
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The Exchange Agent shall then select from among the Cash Election
Shares, pro rata to the holders of Cash Election Shares in accordance with
their respective numbers of Cash Election Shares (except as provided in
the last paragraph of this Section 1.9(e)), a sufficient number of shares
(
Stock Designated Shares
) such that the aggregate cash amount that will
be paid in the Merger equals as closely as practicable the Total Cash
Amount, and all Stock Designated Shares shall be converted into the right
to receive the Per Share Stock Consideration, and
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(C)
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The Cash Election Shares that are not Stock Designated Shares will be
converted into the right to receive the Per Share Cash Consideration.
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(iii)
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Cash Election Shares for less than Total Cash Amount
. If the product obtained
by multiplying (x) the number of Cash Election Shares by (y) the Per Share Cash
Consideration is less than the Total Cash Amount less the aggregate cash paid to
holders of Mixed Consideration Election Shares and Non-Election Shares, then:
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(A)
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All Cash Election Shares shall be converted into the right to receive
the Per Share Cash Consideration,
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(B)
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The Exchange Agent shall then select from among the Stock Election
Shares, in each case pro rata to the holders of Stock Election Shares in
accordance with their respective numbers of Stock Election Shares, as the
case may be, a sufficient number of shares (
Cash Designated Shares
) such
that the aggregate cash amount that will be paid in the Merger equals as
closely as practicable the Total Cash Amount, and all Cash Designated
Shares shall be converted into the right to receive the Per Share
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Cash Consideration, and
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(C)
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The Stock Election Shares that are not Cash Designated Shares shall be
converted into the right to receive the Per Share Stock Consideration.
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(iv)
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Cash Election Shares equal to Total Cash Amount
. If the product obtained by
multiplying (x) the number of Cash Election Shares by (y) the Per Share Cash
Consideration is equal to the Total Cash Amount less the aggregate cash paid to
holders of Mixed Consideration Election Shares and Non-Election Shares, then
subparagraphs (ii) and (iii) above shall not apply and all Cash Election Shares
shall be converted into the right to receive the Per Share Cash Consideration and
all Stock Election Shares shall be converted into the right to receive the Per
Share Stock Consideration.
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Notwithstanding anything in this Agreement to the contrary, to the fullest extent permitted by
Delaware Law, for purposes of determining the allocations set forth in this Section 1.9, Parent
shall have the right to require, but not the obligation to require (unless such requirement is
necessary to satisfy the conditions set forth in Section 6.2(e) or Section 6.3(d)), that any shares
of the Company Common Stock that constitute Dissenting Shares as of the Election Deadline be
treated as Cash Election Shares not subject to the pro rata selection process contemplated by this
Section 1.9.
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(f)
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The pro rata selection process to be used by the Exchange Agent shall consist of such
equitable pro ration processes as shall be reasonably and mutually determined by Parent and
the Company.
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Additional Information
This communication does not constitute an offer to sell or the solicitation of an offer to buy
any securities or a solicitation of any vote or approval. Apache will file with the Securities and
Exchange Commission (SEC) a registration statement on Form S-4 that will include a proxy
statement of Mariner that also constitutes a prospectus of Apache. A definitive proxy
statement/prospectus will be mailed to stockholders of Mariner. Apache and Mariner also plan to
file other documents with the SEC regarding the proposed transaction. INVESTORS AND SECURITY
HOLDERS OF MARINER ARE URGED TO READ THE PROXY STATEMENT/PROSPECTUS AND OTHER DOCUMENTS THAT WILL
BE FILED WITH THE SEC CAREFULLY AND IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL
CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION. Such documents are not currently
available. Investors and security holders will be able to obtain the documents (when available)
free of charge at the SECs web site, www.sec.gov. Copies of the documents filed with the SEC by
Apache will be available free of charge on Apaches website at www.apachecorp.com under the tab
Investors or by contacting Apaches Investor Relations Department at 713-296-6000. Copies of the
documents filed with the SEC by Mariner will be available free of charge on Mariners website at
www.mariner-energy.com under the tab Investor Information or by contacting Mariners Investor
Relations Department at 713-954-5558. You may also read and copy any reports, statements and other
information filed with the SEC at the SEC public reference room at 100 F Street N.E., Room 1580,
Washington, D.C. 20549. Please call the SEC at (800) 732-0330 or visit the SECs website for
further information on its public reference room.
Apache, Mariner, their respective directors and executive officers and other persons
may be deemed, under SEC rules, to be participants in the solicitation of proxies from
stockholders of Mariner in connection with the proposed transaction. Information regarding
Apaches directors and officers can be found in its proxy statement filed with the SEC on March 31, 2010,
and information regarding Mariners directors and officers can be found in its proxy
statement filed with the SEC on April 1, 2010. Additional information regarding the
participants in the proxy solicitation and a description of their direct and indirect
interests in the transaction, by security holdings or otherwise, will be contained in the
proxy statement/prospectus and other relevant materials to be filed with the SEC when they
become available.
Forward-Looking Statements
Statements in this document include forward-looking statements within the meaning of Section
27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of
1934, as amended. The opinions, forecasts, projections, future plans or other statements other
than statements of historical fact, are forward-looking statements. We can give no assurance that
such expectations will prove to have been correct. Actual results could differ materially as a
result of a variety of risks and uncertainties, including: the timing to consummate the proposed
agreement; the risk that a condition to closing of the proposed agreement may not be satisfied; the
risk that a regulatory approval that may be required for the proposed agreement is not obtained or
is obtained subject to conditions that are not anticipated; negative effects from the pendency of
the merger; our ability to achieve the synergies and value creation contemplated by the proposed
agreement; our ability to promptly and effectively integrate the merged businesses; and the
diversion of management time on agreement-related issues. Other factors that could materially
affect actual results are discussed in Apaches and Mariners most recent Forms 10-K as well as
each companys other filings with the SEC available at the SECs website at www.sec.gov. Actual
results may differ materially from those expected, estimated or projected. Forward-looking
statements speak only as of the date they are made, and we undertake no obligation to publicly
update or revise any of them in light of new information, future events or otherwise.
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