UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE TO

 

Tender Offer Statement under Section 14(d)(1) or 13(e)(1)

of the Securities Exchange Act of 1934

 

(Amendment No. 5)

 

 

FX ENERGY, INC.

(Name of Subject Company (Issuer))

 

KIWI ACQUISITION CORP.

(Name of Filing Persons (Offeror))

a wholly-owned subsidiary of

 

ORLEN UPSTREAM SP. Z O.O.

(Names of Filing Persons (Parent of Offeror))

 

 

Common Stock, par value $0.001

(Title of Class of Securities)

 

302695101

(CUSIP Number of Class of Securities)

 

 

Grzegorz Derecki

Head of Legal

Orlen Upstream Sp. z o.o.

ul.Prosta 70

00-838, Warszawa Poland

(+48) 22 778 02 00

(Name, Address, and Telephone Numbers of Person Authorized

to Receive Notices and Communications on Behalf of Filing Persons)

 

Copy to:

 

Dennis Block

Greenberg Traurig, LLP

Met Life Building

200 Park Avenue

New York, NY 10166

(212) 801-9200

 

 

CALCULATION OF FILING FEE

 

Transaction valuation(1)		Amount of filing fee(2)
$63,099,644.40		$6,354.13

 

(1)                                  Estimated for purposes of calculating the amount of the filing fee only, in accordance with Rule 0-11(d) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Calculated by multiplying $1.15, the per share tender offer price, by shares of common stock of FX Energy, Inc. outstanding as of October 26, 2015, which includes 54,869,256 shares of common stock issued and outstanding (including shares of restricted stock, but excluding treasury shares).

 

(2)                                  The filing fee was calculated in accordance with Rule 0-11 of the Exchange Act and Fee Rate Advisory #1 for fiscal year 2016, issued August 27, 2015, by multiplying the transaction value by .0001007.

 

x                                    Check the box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.

 

 

o                                      Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.

 

Check the appropriate boxes below to designate any transactions to which the statement relates:

 

x                                    third-party tender offer subject to Rule 14d-1.

o                                      issuer tender offer subject to Rule 13e-4.

o                                      going-private transaction subject to Rule 13e-3.

o                                      amendment to Schedule 13D under Rule 13d-2.

 

Check the following box if the filing is a final amendment reporting the results of the tender offer: o

 

If applicable, check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:

 

o                                      Rule 13e-4(i) (Cross-Border Issuer Tender Offer)

o                                      Rule 14d-1(d) (Cross-Border Third-Party Tender Offer)

 

 

 

This Amendment No. 5 (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO originally filed with the Securities and Exchange Commission (the “SEC”) on October 27, 2015 (as amended or supplemented, the “Schedule TO”) by Kiwi Acquisition Corp., a Nevada corporation (“Merger Sub”) and a wholly-owned subsidiary of ORLEN Upstream Sp. z o.o., a private limited company organized under the laws of Poland (“Parent”). The Schedule TO relates to the offer by Merger Sub to purchase all of the issued and outstanding shares of common stock of FX Energy, Inc., a Nevada corporation (the “Company”), par value $0.001 per share (the “Company Common Shares” or the “Shares”), at a price of $1.15 per Share, net to the holder thereof in cash, without interest and less any required withholding of taxes, upon the terms and subject to the conditions set forth in the offer to purchase dated October 27, 2015 (as it may be amended or supplemented, the “Offer to Purchase”), and the related letter of transmittal (as it may be amended or supplemented, the “Letter of Transmittal,” and together with the Offer to Purchase, the “Offer”), copies of which were filed with the Schedule TO as Exhibits (a)(1)(A) and (a)(1)(B), respectively.  Capitalized terms used and not defined herein will have the meanings assigned to such terms in the Offer to Purchase or in the Schedule TO.

 

Items 1, 2, 4, 5, 9 and 11.

 

The Offer to Purchase and Items 1, 2, 4, 5, 9 and 11 of the Schedule TO, to the extent Items 1, 2, 4, 5, 9 and 11 incorporate by reference the information set forth in the Offer to Purchase, are hereby amended and supplemented to include the following information:

 

The Offer and withdrawal rights expired at 12:01 a.m., Eastern Time, on Tuesday, December 8, 2015.  Based on information provided by the Depositary, a total of 37,080,788 Company Common Shares (approximately 67.6% of the Company Common Shares issued and outstanding) had been validly tendered and had not been validly withdrawn pursuant to the Offer at 12:01 a.m., Eastern Time, on Tuesday, December 8, 2015 (including 1,856,173 Shares tendered pursuant to the guaranteed delivery procedures set forth in the Offer to Purchase).  The number of Shares validly tendered and not validly withdrawn pursuant to the Offer satisfies the Minimum Condition, and all other remaining conditions to the Offer have been satisfied.  Merger Sub has accepted for payment all Shares that were validly tendered and were not validly withdrawn from the Offer, and payment for such Shares will be made promptly in accordance with the terms of the Offer.

 

On December 8, 2015, Merger Sub commenced a subsequent offering period of the Offer (the “Subsequent Offering Period”), during which stockholders of the Company who have not yet tendered their Shares will have the opportunity to do so.  The Subsequent Offering Period will expire at 5:00 p.m., Eastern Time, on Friday, December 18, 2015, unless extended.  All Shares validly tendered during this Subsequent Offering Period will be immediately accepted for payment, and tendering stockholders will thereafter promptly be paid the same Offer Price of $1.15 per Share in cash, without interest and less any applicable withholding taxes, on the terms and subject to the conditions set forth in the Offer to Purchase and in accordance with Rule 14d-11 under the Exchange Act.  The procedures for accepting the Offer and tendering Shares during the Subsequent Offering Period are the same as those applicable in the initial offering period as described in the Offer to Purchase, except that (i) the guaranteed delivery procedures may not be used during the Subsequent Offering Period and (ii) no withdrawal rights will apply to Shares tendered during the Subsequent Offering Period.

 

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A copy of the press release issued by PKN ORLEN is attached hereto as Exhibit (a)(5)(J).

 

Item 12. Exhibits.

 

Item 12 of the Schedule TO is hereby amended and supplemented with the following:

 

(a)(5)(J)                                                     Press release issued by PKN ORLEN on December 8, 2015 as set forth at http://www.orlenupstream.pl/EN/Press/PressReleases/Pages/default.aspx.

 

(a)(5)(K)                                                 Press release issued by the Company on December 8, 2015 incorporated by reference to Amendment No. 6 to the Schedule 14D-9 filed by the Company on December 8, 2015.

 

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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.

 

Dated: December 8, 2015

 

	ORLEN UPSTREAM SP. Z O.O.
	By:	/s/ Wieslaw Prugar
	Name:	Wieslaw Prugar
	Title:	President and CEO
	By:	/s/ Wieslaw Strak
	Name:	Wieslaw Strak
	Title:	Vice President and CFO
	KIWI ACQUISITION CORP.
	By:	/s/ Grzegorz Derecki
	Name:	Grzegorz Derecki
	Title:	President

 

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EXHIBIT INDEX

 

 

* Previously filed.

 

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