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EX-2.1
Exhibit 2.1
Form of Tender Offer
TENDER OFFER
OF
NESS ENERGY INTERNATIONAL, INC.
TO ACQUIRE FOR UNITS
THE STOCK OF
HESED ENERGY INTERNATIONAL, INC,
$2.00 per Unit
To the Holders of Common Stock of Hesed Energy International, Inc.,
("Hesed"), Ness Energy International, Inc. ("Ness"), a Washington Corporation
(the "offeror"), offers to purchase all of the outstanding shares of the common
stock, no par value (the "common stock") of Hesed, a Texas corporation (the
"company"), by delivery of one unit, consisting of two shares of common stock
and one warrant to purchase an additional share for $2.50, for each $2.00 in
share value of Hesed common stock, upon the terms and conditions set forth and
in the related letter of tender. This number of shares constitutes 100 percent
of the total reported number of shares of common stock of the company (excluding
treasury shares) outstanding at __________[year]. The offeror does not presently
own any shares of common stock.
Important: Shareholders desiring to accept this offer should either (I)
complete and sign the letter of tender in the place required, have the signature
guaranteed and forward the letter of tender with their stock certificates and
any other necessary documents to the depositary or (2) request their bank or
broker to effect the transaction for them. Owners of common stock of the company
having shares registered in the name of a bank or trust company must contact the
bank or trust company if they desire to tender their shares.
1. Number of Shares. The offeror will purchase all shares of common
stock tendered prior to 5:00 p.m. New York Time on September 1, 2000, (the
"expiration date").
2.Exchange of Units: Exchange of units for all shares of common stock duly
tendered and purchased pursuant to this offer will be made as promptly as
practicable after good delivery of shares purchased. If this offer is
extended, payment for shares duly tendered and purchased pursuant to this
offer for which certificates are deposited with the depositary during any
extension will be made by the depositary as promptly as practicable after
good delivery of shares purchased. Certificates for any shares not purchased
will be returned without expense to the tendering stockholder as promptly as
practicable. Subject to instruction 2 of the letter of tender, the offeror
will pay all transfer taxes, if any, payable on he transfer of tendered
shares by virtue of the purchase of the shares by the offeror. All charges
and expenses of the depositary will also be paid by the offeror.
3. Right To Withdraw Tenders at Certain Times: Except as stated in this
paragraph, tenders are irrevocable. Stockholders who tender their shares
pursuant to this offer may withdraw the shares tendered until 5:00 p.m., New
York Time, on Monday, August 28, 2000.
To be effective, notice of withdrawal must be timely received by the depositary
and must specified the name of the person who deposited the shares to be
withdrawn, the number of shares to be withdrawn and the names of stockholders
and serial numbers shown on particular stock certificates evidencing shares to
be withdrawn.
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4. Certain Information Concerning the Company: The principal market for the
company's common stock is the NASDAQ Bulletin Board. The reported high and low
sales prices of the common stock on ASDAQ Bulletin Board for the periods
indicated are as follows:
NASDAQ BULLETIN BOARD
<TABLE>
<CAPTION>
High Low
<S> <C> <C>
1997 [year]... _______ _______
1998 [year] ... _______ _______
1999 [year] ... _______ _______
2000 [year] January ... _______ _______
</TABLE>
The company is subject to the informational requirements of the Securities
Exchange Act of 1934 and files reports and other information with the Securities
and Exchange Commission (the "commission") and the NASDAQ Bulletin Board
relating to its business, financial statements and other matters. Information,
as of particular dates, concerning the company's directors and officers, their
remuneration and options granted to them, the principal holders of the company's
securities and any material interest of these persons in transactions with the
company is required to be disclosed in proxy statements distributed to the
company's stockholders and filed with the commission. These reports, proxy
statements and other information maybe inspected at the principal office of the
commission, 500 North Capitol Street, N.W., Washington D.C. 20549, and copies
may be obtained upon payment of the commission's customary charges.
5. Tender of Shares: Except as provided, to tender shares of common stock,
certificates for shares, together with a properly executed letter of tender and
any other required documents (with signatures guaranteed as required by the
instructions on the letter of tender), should he transmitted to and received by
the depositary at or prior to 5:00 p.m., New York Time, on September 11, 2000
or, if this offer is extended as provided, at or prior to the time specified in
the extension (the date and time at which this offer, as it may be extended from
time to time, expires being called the "expiration").
Tenders maybe made without the concurrent deposit of share certificates if prior
to the expiration either (a) the depositary has received a properly executed
letter of tender with the guarantee of a commercial bank or trust company
located in the United States or a member firm of a registered national
securities exchange, or of a member firm of the National Association of
Securities Dealers, Inc. that deivety of the share certificates referred to in
the letter of tender and any other required documents will be made to the
depositary within eight business days after the expiration; or (b) a properly
executed letter of tender has been deposited with a commercial bank or trust
company located in the United States, a member firm of a registered national
securities exchange or a member firm of the National Association of Securities
Dealers, Inc., and the bank, trust company or member firm shall have delivered
to the depositary a letter or telegram (subsequently confirmed by letter) which
(i) gives the name of the tendering stockholder, the number of shares tendered
and the serial numbers, if available, of the certificates representing the
tendered shares and (ii) guarantees that delivery of the letter of tender,
certificates and any other required documents will be made to the depositary
Within eight business days after the expiration. A tender made pursuant to the
provisions of this paragraph shall be deemed made at the time the letter of
tender with confirmation and guarantee, or letter or telegram (as the case may
be). is properly received by the depositary, provided, that the letter of
tender, share certificates and other required documents are subsequently
delivered in accordance with these provisions.
The delivery of the letter of tender and the acceptance of this offer will
constitute an agreement between the tendering stockholder and the offeror, in
accordance with the terms of this offer and the letter of tender, only when the
duly signed letter of tender, or a telegram or letter (as provided above) from a
member of a national securities exchange or of the National Association of
Securities Dealers, Inc.. or a commercial bank or trust company located in the
United States, is received by the depositary.
By executing the letter of tender, each tendering stockholder will be
irrevocably appointing designees of the offeror as proxies, effective when, and
only to the extent that, the offeror purchases the shares of common stock
tendered by the stockholder. The designee or designees may vote the shares of
common stock as they
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in their discretion deem proper at any annual, special or adjourned meeting
of the company stockholders.
If the company issues or authorizes the issuance of additional shares of any
class of capital stock, or issues or authorizes the issuance of other securities
in respect of, in lieu of, or in substitution for the presently outstanding
shares of common stock, whether by reason of reclassification, reorganization,
conversion, exchange, split-up, combination, adjustment or otherwise (except as
described in the immediately preceding paragraph). the record date for which
occurs after the date below and prior to the transfer to the offeror's name of
the shares of common stock purchased under this offer, the offeror shall have
the right to adjust appropriately the purchase price, and the amount and kind of
shares of common stock or other securities to be purchased and the fees payable.
Each such adjustment shall he conclusive with respect to all tendered shares of
common stock.
6. Certain Conditions of the Offer: The offeror shall not be required to
purchase or pay for any shares of common stock properly tendered and may
withdraw this offer, if before the time of payment, in the judgment of the
offeror's management.
(a) there is instituted or threatened any action or proceeding by or before any
court, administrative agency. Governmental authority or other person which seeks
to question, set aside or enjoin the consummation of the transactions described
in or contemplated by this offer, or the results of which may have a material
adverse effect on the business and operations, prospects or condition (financial
or otherwise) of the company or offeror or any of their respective subsidiaries
or affiliates; or
(b) there has been (i) any suspension of, or limitation on prices for, trading
in securities on the NASDAQ Bulletin Board or in the shares of common stock,
(ii) the declaration of a banking moratorium by federal or New York State
authorities, or (iii) the commencement of a war, armed hostilities or other
international or national calamity directly or indirectly involving the United
States, or, in the case of any of the above existing at the rime of the
commencement of this offer, a material acceleration or worsening; or
(c) the company has (i) issued or authorized or proposed the issuance of
additional shares of capital stock of any class, or securities convertible into
any shares, other than shares of common stock issued upon exercise of presently
outstanding stock options or upon conversion of presently outstanding
convertible securities, or (ii) issued or authorized or proposed the issuance
of, any other securities in respect of, in lieu of, or in substitution for, its
now outstanding shares of common stock, or (iii) authorized or proposed any
merger, consolidation, acquisition of assets., disposition of assets, or
material change in its capitalization, or other comparable event not in the
ordinary course of business; or
(d) there has occurred or been threatened a material change to the business,
options. Financial condition or capitalization of the company and its
subsidiaries; which in the opinion of offeror's management makes it inadvisable
to proceed with the purchase and payment for shares tendered pursuant to this
offer.
I
7. Solicitation and Other Fees: The offeror will pay to ______________ ,Inc.,
Order Placement Agent or to any commercial bank or trust company whose name
appears in the appropriate space in the letter of tender, a fee of $0.02 for
each $2.00 of share value exchanged. Dealers will also be reimbursed by the
offeror for customary mailing and handling expenses incurred by them.
In addition, the offeror has agreed to indemnify and hold harmless the Order
Placement Agent against certain liabilities and expenses in connection with this
offer. _____________ has been retained by the offeror to solicit acceptances
of this offer and will receive reasonable and customary compensation for these
services. The depositary will receive reasonable and customary compensation for
its services and will be reimbursed for certain out of pocket costs in
connection with this offer.
8. Extension and Termination of Tender Period: The offeror reserves the right to
extend the time within which shares of common stock may be tendered, at any nine
or from time to time, by notice of such extension to the depositary. The offeror
reserves the right, at its option, to terminate this offer at any time and not
to purchase any shares of common stock of the company tendered upon the
occurrence of any of the
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conditions specified in section 7, by giving notice to the depositary.
9. Certain Information Concerning the Offeror: Since its or organization, the
offeror has been principally engaged in the production of oil and gas. The
offeror's place of business is located at 4201 I-20 East Service Road, Willow
Park, Texas, 76087.
The offeror is a publicly owned corporation and originally called Kit Karson
Corporation, the common stock of which commenced trading in the over-the-counter
market in March of 1979. The registration statements, including the
prospectuses, with respect to each of these offerings are filed with the
commission at its principal office at 500 North Capitol Street, NW.. Washington,
D.C. 20549, and copies thereof may he obtained upon payment of the commission's
customary charges. At December 31, 1999, there were ___________shares of the
offeror's common stock outstanding.
The offeror is subject to the informational filing requirements of the
Securities Exchange Act of 1934, and files reports and other information with
the commission relating to its business, financial statements and other matters.
These reports and other information may be requested at the principal office of
the commission, 500 North Capitol Street. NW,. Washington, D.C. 20549, and
copies may be obtained upon payment of the commission's customary charges.
The Director and Officers of the company are:
<TABLE>
<CAPTION>
NAME POSITION
<S> <C>
Harold "Hayseed" Stephens President, CEO & Director
Mary Gene Stephens Secretary & treasurer
Mark Bassham Director
Richard Nash Director
Bob Lee Chief Financial Officer
</TABLE>
Hayseed Stephens, chairman of the board and president of the offeror, owns
27,235,780 shares of the offeror am is a control person of the offeror (as that
term is defined under the Sec ties Exchange Act of 1934). Mr. Stephens will own
36,507,780 after this tender offer. Except as set forth below in this paragraph,
none of the offeror, its subsidiaries or, to the best of the offeror's
knowledge, any officer, director, associate or affiliated person of e offeror or
its subsidiaries, owns shares of the company's common stock, had any
transactions in any `the company' s securities during the past days, has any
right to acquire, directly or indirectly, any of the company's securities or has
any contract, arrangement or understanding (other than the bank loan described
in section 11 and the solicitation arrangements described in section 8) with any
person regarding any of the company's securities. According to the latest
available reports filed with the commission, ___________, a director of offeror,
is the president and a director of the company and owns _________ shares of the
company's common stock, nine shares of the company's Series A preferred stock
and, according to the company's most recent proxy statement, has options to
acquire ________ shares of the company's common stock.
__________ owns, in a margin account, __________ shares, and __________, owns
__________ shares, of common stock acquired on February 21 and 22, ________
[year], and ________, owns $________ principal amount of the company's ____
percent convertible subordinated debentures.
In the summer of _______[year], the offeror requested __________`to ascertain
whether the management of the company would be interested in discussing a
possible combination of the businesses of the offeror and the company. The
company promptly advised the offeror that it had no interest in entering into
any discussions.
10. Source of Funds: Funds required by the offeror to purchase an aggregate
of_________ shares pursuant to the offer are estimated to be approximately
S_____, excluding fees, commissions amid expenses. The offeror has borrowed
$_______ to purchase shares pursuant to this offer from the _________ National
Bank of________(the "hank"). The bank has made an unsecured loan of $_________
to the offeror for a two year term. The interest rate is the bank's corporate
base rate, from time to time, plus an increment not exceeding
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________ percent, varying with the amount of the offeror's average compensating
balances. Additional funds, if needed, will be provided from the offeror's
general funds.
11. The Purpose of This Offer: The offeror intends to acquire a substantial
investment position in the securities of the company. The offeror expects to
become the largest shareholder of the company as a result of this offer.
While the offeror does not expect to achieve control of the company as a result
of this offer, it does mint intend merely to be a passive investor in the
company. The offeror intends to seek to obtain appropriate representation on the
company's board of directors if this offer is successful, and, through such
representation, to participate with the other directors in the formulation of
corporate policy and business strategy.
While the offeror has no present intention to do so, the offeror reserves the
right after the conclusion of this offer to dispose of shares acquired pursuant
to this offer or to acquire additional shares of common stock of the company,
through purchases in the open market, privately negotiated transactions and/or
one or more additional tender offers, at prices which may be higher or lower
than the price set forth in this offer. The result of such purchases or
additional tender offers may place the offeror in control of the company. The
offeror also reserves the right to seek to acquire control in the future by
merger, stock for stock or stock for assets acquisition, additional tender
offers or other methods. The offeror also reserves the right to seek to
liquidate the company, to sell any of its assets or businesses or to make any
other major change in the business or corporate structure.
12. Tax Consequences. Sales of shares of common stock pursuant to this offer may
be taxable transactions and stockholders are urged to consult their tax advisers
to determine the tax consequences to them of tendering hereunder.
13. Securities Law Filings. In accordance with the Securities Exchange Act of
1934, the offeror has filed with the commission a Form SB-2 Registration
Statement furnishing certain additional information with respect to this offer
which may be inspected at the principal office of the commission and copies of
which may he obtained from the commission upon payment of its customary charges.
14. Eligible Stockholders: Representations. This offer is not being made to,
nor will the offeror accept tenders from, the company's stockholders in any
jurisdiction in which the making of this offer or its acceptance would not
be in compliance with the securities or blue sky laws of the jurisdiction.
15. Rights Reserved to Offeror: The offeror shall have the absolute right
to reject any and all tenders which are not timely or in the proper form
and shall also be entitled to waive any condition of this offer (including
the instructions in the letter of tender) or any defect in any tender.
Neither the offeror, the depositary nor any dealer be under any duty to
give notification to a company stockholder of defects in any tender nor
shall any of them incur any liability to the stockholder for failure to
give notification. All questions as to the validity form, time of receipt,
eligibility or acceptance of any tender will be conclusively determined by
the offeror and its determination will be final.
17. Miscellaneous: No dealer or other person has been authorized to give
any information or make any representation on behalf of the offeror other
than as contained in this offer amid in the letter of tender and, if given
or made, this information or representation must mint be relied upon as
having been authorized.
Questions or requests for assistance or for additional copies and of the
letter of tender may be directed to the offeror. Properly executed
facsimile copies of the letter of tender will be accepted.
The letter of tender and certificates for your shares should be sent by
you, your bank or trust company to the depositary named below.
_________________ Ness Energy International, Inc.
Date
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Hayseed Stephens, President
