Corning Natural Gas Corporation SC 13D/A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE
13d-1(a) AND AMENDMENTS THERETO
FILED PURSUANT RULE 13d-2(a)
(Amendment No. 1)
Corning Natural Gas Corporation
(Name of Issuer)
Common Stock
(Title of Class of Securities)
219381100
(CUSIP Number)
Marc C. Krantz, Kohrman Jackson & Krantz P.L.L., 1375 East 9th Street, 20th Floor, Cleveland, OH 44114, (216) 696-8700
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
July 20, 2006
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report the
acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule
13d-1(e), 13d-1(f) or 13d-1(g), check the following box. o
Note: Schedules filed in paper format shall include a signed original and five copies of the
schedule including all exhibits. See Rule 13d-7(b) for other parties to whom copies are to be
sent.
The remainder of this cover page shall be filled out for a reporting persons initial filing on
this form with respect to the subject class of securities, and for any subsequent amendment
containing information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed to be filed for
the purpose of Section 18 of the Securities Exchange Act of 1934 or otherwise subject to the
liabilities of that section of the Act but shall be subject to all other provisions of the Act
(however, see the Notes).
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CUSIP No. |
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219381100 |
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1 |
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NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
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Richard M. Osborne Trust |
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
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(A) o |
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(B) o |
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3 |
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SEC USE ONLY |
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4 |
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SOURCE OF FUNDS |
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WC |
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5 |
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) |
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o |
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6 |
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CITIZENSHIP OR PLACE OF ORGANIZATION |
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Ohio
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7 |
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SOLE VOTING POWER |
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NUMBER OF |
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83,233 |
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SHARES |
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SHARED VOTING POWER |
BENEFICIALLY |
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OWNED BY |
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EACH |
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SOLE DISPOSITIVE POWER |
REPORTING |
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PERSON |
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83,233 |
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WITH |
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SHARED DISPOSITIVE POWER |
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11 |
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
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83,233 |
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES |
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13 |
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
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16.4% |
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14 |
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TYPE OF REPORTING PERSON* |
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OO |
TABLE OF CONTENTS
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CUSIP No. 219381100
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Page 3 of 6 |
Introduction.
This Amendment No. 1 to Schedule 13D is filed on behalf of the Richard M. Osborne Trust, an
Ohio trust (the Trust), relating to the acquisition of shares of common stock, par value $5.00
per share (the Shares), of Corning Natural Gas Corporation, a New York corporation (Corning).
Richard M. Osborne is the sole trustee of the Trust.
Item 3. Source and Amount of Funds or Other Consideration.
The Shares reported in Item 5(c) as having been acquired by the Trust were acquired for an
aggregate purchase price of approximately $1,002,267.50 (excluding commissions) with funds of the
Trust.
Item 4. Purpose of Transaction.
Mr. Osborne has acquired additional Shares of Corning because he believes that they are
undervalued. On July 19, 2006, Corning filed a Preliminary Proxy Statement on Schedule 14A with
the Securities and Exchange Commission (the Proxy Statement) relating to the special meeting of
stockholders of Corning to consider and vote on a proposed Agreement and Plan of Merger in which
Corning would be acquired by C&T Enterprises, Inc. (the Merger). Mr. Osborne believes that the
consideration proposed in the Merger does not represent adequate value for the stockholders of
Corning. In its own Proxy Statement, Cornings management admitted they have struggled with
maintaining the supplies of natural gas due to a lack of capital and human resources which has
stymied increases in stockholder value. Mr. Osborne is opposed to selling his Shares at what he
believes is a price distressed by managements failure to effectively run the business of Corning.
Accordingly, Mr. Osborne intends to vote all of the Shares owned by the Trust against the Merger at
the special meeting.
The Proxy Statement states that Cornings stockholders will receive $13.71 in cash, subject to
adjustments, for each Share owned by them. Corning expects that after adjustments are made, the
actual price per Share received in the Merger will range from between $12.63 and $17.66. However,
the actual price per Share will not be determined until the closing of the Merger and could fall
outside the range of prices predicted in the Proxy Statement. Even assuming the ultimate price per
Share does fall within the predicted range, Mr. Osborne questions how stockholders will be able to
make an informed decision on the Merger when the expected range of prices varies by almost 40%.
In addition, Mr. Osborne is troubled by the apparent conflict of interests of Thomas K. Barry,
Cornings President and Chief Executive Officer, and Kenneth J. Robinson, the companys Executive
Vice President. Mr. Barry and Mr. Robinson stand to receive substantial payments as a result of
the Merger. For example, Corning disclosed in the Proxy Statement
that, as a result of the Merger,
Mr. Barry and Mr. Robinson are entitled to receive $766,639 and $531,570, respectively, under their
employment and change in control agreements, and that life insurance policies will be transferred
to Mr. Barry and Mr. Robinson with cash surrender values of $235,518 and $151,059, respectively.
Assuming a price per Share of $13.71, Cornings stockholders will receive only $6.9 million as a
result of the Merger, while Mr. Barry and Mr. Robinson will receive a total of $1.7 million. Mr.
Barry and Mr. Robinson appear further
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CUSIP No. 219381100
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Page 4 of 6 |
conflicted because one of the mechanisms to increase the price per Share that Cornings
stockholders will receive as a result of the Merger is subject to Mr. Barry and Mr. Robinsons
agreement to voluntarily reduce their severance packages. Although not referenced in the Proxy
Statement, according to documents previously filed by Corning with the Securities and Exchange
Commission, Corning would continue to pay Mr. Barry and
Mr. Robinson but not the stockholders
after the Merger. Mr. Barry and Mr. Robinson are entitled to receive annual pension benefits
currently estimated by Corning to be $76,860 and $56,238, respectively, upon their retirement after
the Merger.
None
of the employment, change-in-control or insurance agreements
referenced above appear to be filed with the Securities and Exchange Commission, as Mr. Osborne believes is required by
applicable law and rules. Therefore, the amounts payable to Mr. Barry and Mr. Robinson are not
able to be independently determined or verified. Mr. Osborne has requested these agreements from
Corning in addition to requesting a stockholder list for the purpose of communicating with other
stockholders regarding the affairs of Corning. This request is attached as Exhibit 7.1.
The Trust and Mr. Osborne may decide to solicit proxies in connection with the special meeting
and specifically reserve their right to do so. However, this Amendment No. 1 to Schedule 13D is
not and should not be deemed to be a solicitation of proxies or consents with respect to any
meeting of Cornings stockholders. Any such solicitation by the Trust or Mr. Osborne would be made
only pursuant to separate proxy or solicitation materials complying with all applicable
requirements of Section 14(a) of the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
Item 5. Interest in Securities of the Issuer.
(a) According to the most recently available filing with the Securities and Exchange
Commission by Corning, there are 506,918 Shares outstanding.
The Trust beneficially owns 83,233 Shares, or 16.4% of the outstanding Shares. As sole
trustee of the Trust, Mr. Osborne may be deemed to beneficially own all Shares held by the Trust.
(b) Mr. Osborne, as sole trustee of the Trust, has sole power to vote, or to direct the voting
of, and the sole power to dispose or to direct the disposition of, the Shares held by the Trust.
(c) On July 24, 2006, the Trust purchased a total of 49,642 Shares in a private transaction at
a price of $18.75 a Share. In addition, since the filing of its original Schedule 13D, the Trust
purchased 5,100 Shares in open market transactions as set forth below:
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Approximate Per Share Price (Excluding |
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Number of Shares |
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Commissions) |
5/18/06
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600
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$13.80 |
5/19/06
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400
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$14.15 |
5/25/06
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600
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$14.15 |
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CUSIP No. 219381100
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Page 5 of 6 |
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Approximate Per Share Price (Excluding |
Date |
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Number of Shares |
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Commissions) |
6/13/06
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400
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$14.00 |
6/25/06
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10
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$14.00 |
6/29/06
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1,890
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$14.00 |
6/30/06
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100
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$14.00 |
7/7/06
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900
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$14.00 |
7/20/06
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200
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$14.25 |
Item 7. Material to be Filed as Exhibits.
Exhibit 7.1 Request to Corning from the Trust dated July 28, 2006
SIGNATURE
After reasonable 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.
Date: July 28, 2006
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RICHARD M. OSBORNE TRUST |
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/s/ Richard M. Osborne |
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Richard M. Osborne, Trustee |
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Page 6 of 7
EXHIBIT INDEX
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Exhibit Number |
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Description |
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Exhibit 7.1
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Request to Corning from the Trust dated July 28, 2006 |
Page 7 of 7