f8k_120208i101303503.htm
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
DC 20549
___________
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Date
of report (Date of earliest event reported): December 2, 2008
Evergreen
Energy Inc.
(Exact
Name of Registrant as Specified in Charter)
Delaware
|
001-14176
|
84-1079971
|
(State
or Other Jurisdiction
of
Incorporation)
|
(Commission
File
Number)
|
(IRS
Employer
Identification
No.)
|
1225
17th Street, Suite 1300, Denver, Colorado 80202
(Address
of Principal Executive Offices) (Zip Code)
Registrant’s
telephone number, including area code: (303) 293-2992
N/A
(Former
Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the
Form 8-K filing is intended to simultaneously satisfy the filing obligation of
the registrant under any of the following provisions (see General Instruction
A.2. below):
£ Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
£ Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
£ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
£ Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item
1.01. Entry into a Material Definitive Agreement.
On
December 4, 2008, Evergreen Energy Inc. (the “Company”) issued a press release
announcing that it entered into a Rights Agreement (the “Rights Agreement”),
dated December 4, 2008, between the Company and Interwest Transfer Company,
Inc., as Rights Agent (the “Rights Agent”). In connection with the adoption of
the Rights Agreement, on December 2, 2008, the Board of Directors of the Company
declared a dividend distribution of one right (“Right”) for each outstanding
share of common stock, par value $0.001 per share (the “Common Stock”), of the
Company, payable to stockholders of record on December 19, 2008. Each Right,
when exercisable, entitles the registered holder to purchase from the Company
one one-thousandth of one share of Series A Junior Participating Preferred Stock
(“Preferred Stock”) at a price of $4.00 per one one-thousandth share (the
“Purchase Price”), subject to adjustment. The description and terms of the
Rights are set forth in the Rights Agreement. The press release announcing the
Rights Agreement is attached hereto as Exhibit 99.1 and is incorporated herein
by reference.
Initially,
the Rights will be attached to all certificates representing shares of Common
Stock then outstanding, and no separate certificates evidencing the Rights will
be distributed. The Rights will separate from the Common Stock and a
distribution of Rights Certificates (as defined below) will occur upon the
earlier to occur of (i) 10 days following a public announcement that a
person or group of affiliated or associated persons (an “Acquiring Person”) has
acquired beneficial ownership of 15% or more of the outstanding shares of Common
Stock (the “Stock Acquisition Date”) or (ii) 10 business days (or such
later date as the Board of Directors of the Company may determine) following the
commencement of, or the first public announcement of the intention to commence,
a tender offer or exchange offer the consummation of which would result in the
beneficial ownership by a person of 15% or more of the outstanding shares of
Common Stock (the earlier of such dates being called the “Distribution
Date”).
Until
the Distribution Date, (i) the Rights will be evidenced by the Common Stock
certificates, and will be transferred with and only with the Common Stock
certificates, (ii) new Common Stock certificates issued after December 19,
2008 upon transfer or new issuance of the Common Stock will contain a notation
incorporating the Rights Agreement by reference, and (iii) the surrender
for transfer of any certificates for Common Stock outstanding will also
constitute the transfer of the Rights associated with the Common Stock
represented by such certificate.
The
Rights are not exercisable until the Distribution Date and will expire at the
close of business on December 19, 2018, unless such date is extended, the Rights
Agreement is terminated, or the Rights are earlier redeemed or exchanged by the
Company as described below. The Rights will not be exercisable by a holder in
any jurisdiction where the requisite qualification to the issuance to such
holder, or the exercise by such holder, of the Rights has not been obtained or
is not obtainable.
As
soon as practicable following the Distribution Date, separate certificates
evidencing the Rights (“Rights Certificates”) will be mailed to holders of
record of the Common Stock as of the close of business on the Distribution Date
and, thereafter, the separate Rights Certificates alone will evidence the
Rights. Except as otherwise determined by the Board of Directors of the Company,
only shares of Common Stock issued prior to the Distribution Date will be issued
with Rights.
In
the event that a Person becomes the beneficial owner of 15% or more of the then
outstanding shares of Common Stock, except pursuant to an offer for all
outstanding shares of Common Stock which the Directors determine to be fair to
and otherwise in the best interests of the Company and its stockholders (a
“Qualifying Offer”), each holder of a Right will, after the end of a redemption
period referred to below, have the right to exercise the Right by purchasing,
for an amount equal to the Purchase Price, Common Stock (or, in certain
circumstances, cash, property or other securities of the Company) having a value
equal to two times such amount. Notwithstanding any of the foregoing, following
the occurrence of the events set forth in this paragraph, all Rights that are,
or (under certain circumstances specified in the Rights Agreement) were,
beneficially owned by any Acquiring Person will be null and void. However,
Rights are not exercisable following the occurrence of the events set forth
above until such time as the Rights are no longer redeemable by the Company as
set forth below.
For
example, at a Purchase Price of $4.00 per Right, each Right not owned by an
Acquiring Person (or by certain related parties) following an event set forth in
the preceding paragraph would entitle its holder to purchase $8.00 worth
of
Common
Stock (or other consideration, as noted above) for $4.00. Assuming that the
Common Stock had a per share value of $2.00 at such time, the holder of each
valid Right would be entitled to purchase four shares of Common Stock for
$4.00.
In
the event that at any time following the Stock Acquisition Date, (i) the
Company is acquired in a merger or other business combination transaction (other
than a merger that follows a Qualifying Offer), or (ii) 50% or more of the
Company’s assets or earning power is sold or transferred, each holder of a Right
(except Rights which previously have been voided as set forth above) shall,
after the expiration of the redemption period referred to below, have the right
to receive, upon exercise, common stock of the acquiring company having a value
equal to two times the Purchase Price of the Right (e.g., common stock of
the acquiring company having a value of $8.00 for the $4.00 Purchase
Price).
At
any time after a person or group of affiliated or associated persons becomes an
Acquiring Person and prior to the acquisition by such person of 50% or more of
the outstanding Common Stock, the Board of Directors of the Company may exchange
the Rights (other than Rights owned by such person or group which have become
void), in whole or in part, at an exchange ratio of one share of Common Stock
(or, in certain circumstances, other equity securities of the Company that are
deemed by the Board of Directors of the Company to have the same value as shares
of Common Stock) per Right (subject to adjustment).
The
Purchase Price payable, and the number of one one-thousandths of a share of
Preferred Stock or other securities or property issuable, upon exercise of the
Rights are subject to adjustment from time to time to prevent dilution under
certain circumstances.
With
certain exceptions, no adjustment in the Purchase Price will be required until
cumulative adjustments require an adjustment of at least 1% in such Purchase
Price. No fractional shares will be issued (other than fractions which are
integral multiples of one one-thousandth of a share of Preferred Stock) and in
lieu thereof, an adjustment in cash will be made based on the market price of
the Preferred Stock on the last trading date prior to the date of
exercise.
In
general, the Board of Directors of the Company, may cause the Company to redeem
the Rights in whole, but not in part, at any time during the period commencing
on December 2, 2008 and ending on the tenth business day following the Stock
Acquisition Date (the “Redemption Period”) at a price of $0.001 per Right
(payable in cash, Common Stock or other consideration deemed appropriate by the
Board of Directors of the Company). Under certain circumstances set forth in the
Rights Agreement, the decision to redeem the Rights will require the concurrence
of a two-thirds majority of the Board of Directors. After the Redemption Period
has expired, the Company’s right of redemption may be reinstated if an Acquiring
Person reduces his beneficial ownership to 10% or less of the outstanding shares
of Common Stock in a transaction or series of transactions not involving the
Company and there are no other Acquiring Persons. Immediately upon the action of
the Board of Directors of the Company ordering redemption of the Rights, the
Rights will terminate and the only right of the holders of Rights will be to
receive the $0.001 redemption price.
Until
a Right is exercised, the holder thereof, as such, will have no rights as a
stockholder of the Company, including, without limitation, the right to vote or
to receive dividends. While the distribution of the Rights will not be subject
to federal taxation to stockholders or to the Company, stockholders may,
depending upon the circumstances, recognize taxable income in the event that the
Rights become exercisable for Common Stock (or other consideration) of the
Company or for common stock of the acquiring company as set forth
above.
Except
with respect to the Redemption Price of the Rights, any of the provisions of the
Rights Agreement may be amended by the Board of Directors of the Company prior
to the Distribution Date. After the Distribution Date, the provisions of the
Rights Agreement may be amended by the Board of Directors of the Company in
order to cure any ambiguity, defect or inconsistency or to make changes which do
not adversely affect the interests of holders of Rights (excluding the interests
of any Acquiring Person), or to shorten or lengthen any time period under the
Rights Agreement; provided however, no amendment
to adjust the time period governing redemption may be made at such time as the
Rights are not redeemable.
A
total of 500,000 shares of Preferred Stock are reserved for issuance upon
exercise of the Rights.
The
Rights have certain anti-takeover effects. The Rights will cause substantial
dilution to a person or group that attempts to acquire the Company without
conditioning the offer on a substantial number of Rights being acquired, or in
a
manner
or on terms not approved by the Board of Directors of the Company. The Rights,
however, should not deter any prospective offeror willing to negotiate in good
faith with the Board of Directors of the Company, nor should the Rights
interfere with any merger or other business combination approved by the Board of
Directors of the Company.
At
least once every three years the Nominating and Corporate Governance Committee
of the Board or another committee of directors comprised of directors who are
independent of management and free from any relationship that, in the opinion of
the Board of Directors would interfere with their exercise of independent
judgment, shall review and evaluate the Rights Agreement in order to consider
whether the maintenance of the Rights Agreement continues to be in the interests
of the Company and its stockholders. Following each such review, the committee
will communicate its conclusions to the full Board of Directors, including any
recommendation in light thereof as to whether the Rights Agreement should be
modified or the Rights should be redeemed.
The
foregoing description of the Rights and the Rights Agreement between the Company
and the Rights Agent does not purport to be complete and is qualified in its
entirety by reference to the Rights Agreement, which is included as Exhibit 4.1
hereto and is incorporated herein by reference.
Item
3.03. Material Modification to Rights of Security
Holders.
The information contained in
Items 1.01 and 5.03 is incorporated herein by reference.
Item
5.03. Amendments to Articles of Incorporation or Bylaws; Change in
Fiscal Year.
On December 4, 2008, the Company filed
a Certificate of Designation, Preferences and Rights of Series A Junior
Participating Preferred Stock (the “Certificate of Designations”) with the
Secretary of State of Delaware. In connection with the adoption of the
Certificate of Designations, the Board of Directors of the Company authorized
the creation of a series of 500,000 shares of Series A Junior Participating
Preferred Stock. A copy of the Certificate of Designations is attached hereto as
Exhibit 3.1 and is incorporated herein by reference.
Item
9.01. Financial Statements and Exhibits.
(d)
Exhibits.
Exhibit
No.
|
Description
|
|
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3.1
|
Certificate
of Designation, Preferences and Rights of Series A Junior Participating
Preferred Stock.
|
4.1
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Rights
Agreement, dated as of December 4, 2008, between the Company and Interwest
Transfer Company, Inc., as Rights Agent.
|
99.1
|
Press Release dated
December 4, 2008.
|
|
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SIGNATURES
Pursuant to the requirements of the
Securities Exchange Act of 1934, as amended, the registrant has duly caused this
report to be signed on its behalf by the undersigned hereunto duly
authorized.
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EVERGREEN
ENERGY INC.
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|
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Date: December 4, 2008
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By: /s/
Diana L. Kubik
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|
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Name: Diana
L. Kubik
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|
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Title: Vice
President and Chief Financial
Officer
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EXHIBIT
INDEX
Exhibit
No.
|
Description
|
|
|
3.1
|
Certificate
of Designation, Preferences and Rights of Series A Junior Participating
Preferred Stock.
|
4.1
|
Rights
Agreement, dated as of December 4, 2008, between the Company and Interwest
Transfer Company, Inc., as Rights Agent.
|
99.1
|
Press Release dated
December 4, 2008.
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