Transaction Valuation(1)
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Amount of Filing Fee
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$22,000,000
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$2,856
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x
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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.
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o
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Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.
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o
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third-party tender offer subject to Rule 14d-1.
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x
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issuer tender offer subject to Rule 13e-4.
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o
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going-private transaction subject to Rule 13e-3.
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o
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amendment to Schedule 13D under Rule 13d-2.
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o
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Rule 13e-4(i) (Cross-Border Issuer Tender Offer)
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o
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Rule 14d-1(d) (Cross-Border Third Party Tender Offer)
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3.
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there shall have occurred (i) any general suspension of trading in, or limitation on prices for, securities on any national securities exchange or in the over-the-counter market in the United States, (ii) the declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, (iii) the commencement or escalation of a war, armed hostilities or other international or national calamity directly or indirectly involving the United States or any of its territories, including, but not limited to, an act of terrorism, on or after May 8, 2020, the last trading day prior to the commencement of the tender offer, (iv) any other change in the general political, market, economic or financial conditions in the United States or abroad that could, in our reasonable judgment, have a material adverse effect on our and our subsidiaries’ business, condition (financial or otherwise), assets, income, operations or prospects, taken as a whole, or (v) in the case of any of the foregoing existing at the time of the commencement of the tender offer, a material acceleration or worsening thereof;
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11.
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there shall have been no change in law or in the official interpretation or administration of law, or relevant position or policy of a governmental authority with respect to any laws, applicable to the tender offer that would materially and adversely affect the ability of the Company to lawfully consummate the Offer as contemplated;
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Item 12.
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Exhibits.
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Exhibit Number
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Description
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(a)(1)(A)
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Offer to Purchase, dated May 11, 2020.
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(a)(1)(B)
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Letter of Transmittal.
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Exhibit Number
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Description
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(a)(1)(C)
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Notice of Guaranteed Delivery.
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(a)(1)(D)
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Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.
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(a)(1)(E)
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Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.
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(a)(2)
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None.
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(a)(3)
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Not applicable.
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(a)(4)
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Not applicable.
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(a)(5)(A)
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Press release issued by Spark Energy, Inc. on May 11, 2020.
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(a)(5)(B)
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(b)
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Not applicable.
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(d)(1)
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Registration Rights Agreement, dated as of August 1, 2014, by and among Spark Energy, Inc., NuDevco Retail Holdings, LLC and NuDevco Retail LLC (incorporated by reference to Exhibit 10.4 to Current Report on Form 8-K (Commission File No. 001-36559) filed on August 4, 2014).
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(d)(2)
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Spark HoldCo. Third Amended and Restated Limited Liability Agreement, dated as of March 15, 2017, by and among Spark Energy, Inc., Retailco, LLC and NuDevco Retail, LLC (incorporated by reference to Exhibit 10.1 to Quarterly Report on Form 10-Q (Commission File No. 001-36559) filed on May 8, 2017).
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(d)(3)
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Amendment No. 1, dated as of January 26, 2018, to Third Amended and Restated Limited Liability Company Agreement of Spark Holdco, LLC (incorporated by reference to Exhibit 10.1 to Current Report on Form 8-K (Commission File No. 001-36559) filed on January 26, 2018).
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(d)(4)
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Amendment No. 2 to the Third Amended and Restated Limited Liability Company Agreement of Spark Holdco, LLC, dated as of March 30, 2020, by and between Spark Energy, Inc., Spark HoldCo, LLC, NuDevco Retail, LLC and Retailco, LLC (incorporated by reference to Exhibit 10.1 to Current Report on Form 8-K (Commission File No. 001-36559) filed on April 3, 2020).
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(d)(5)
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Spark Energy, Inc. Second Amended and Restated Long-Term Incentive Plan (incorporated by reference to Exhibit 10.1 to Current Report on Form 8-K (Commission File No. 001-36559) filed on May 23, 2019).
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(d)(6)
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Form of Restricted Stock Unit Agreement (incorporated by reference to Exhibit 10.4 to Registration Statement on Form S-1 (Commission File No. 333-196375) filed on June 30, 2014).
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(d)(7)
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Form of Notice of Grant of Restricted Stock Unit (incorporated by reference to Exhibit 10.5 to Registration Statement on Form S-1 (Commission File No. 333-196375) filed on June 30, 2014).
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(d)(8)
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Form of Notice of Grant of Restricted Stock Unit (Change in Control Restricted Stock Units) (incorporated by reference to Exhibit 10.5 to Quarterly Report on Form 10-Q (Commission File No. 001-36559) filed on August 3, 2018).
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(d)(9)
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Indemnification Agreement, dated August 1, 2014, by and between Spark Energy, Inc. and W. Keith Maxwell III (incorporated by reference to Exhibit 10.5 to Current Report on Form 8-K (Commission File No. 001-36559) filed on August 4, 2014).
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(d)(10)
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Indemnification Agreement, dated August 1, 2014, by and between Spark Energy, Inc. and James G. Jones II (incorporated by reference to Exhibit 10.10 to Current Report on Form 8-K (Commission File No. 001-36559) filed on August 4, 2014).
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(d)(11)
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Indemnification Agreement, dated August 1, 2014, by and between Spark Energy, Inc. and Kenneth M. Hartwick (incorporated by reference to Exhibit 10.12 to Current Report on Form 8-K (Commission File No. 001-36559) filed on August 4, 2014).
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(d)(12)
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Indemnification Agreement, dated May 25, 2016, by and between Spark Energy, Inc. and Nick W. Evans, Jr. (incorporated by reference to Exhibit 10.1 to Current Report on Form 8-K (Commission File No. 001-36559) filed on May 27, 2016).
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Exhibit Number
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Description
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(d)(13)
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Indemnification Agreement, dated August 29, 2019, by and among Spark Energy, Inc. and Amanda Bush (incorporated by reference to Exhibit 10.1 to Current Report on Form 8-K (Commission File No. 001-36559) filed on August 30, 2019).
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(d)(14)
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Indemnification Agreement, dated as of March 17, 2020, by and between Spark Energy, Inc. and Kevin McMinn (incorporated by reference to Exhibit 10.2 to Current Report on Form 8-K (Commission File No. 001-36559) filed on March 19, 2020).
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(d)(15)
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Employment Agreement, dated June 14, 2019, by and between Spark Energy, Inc. and James G. Jones II (incorporated by reference to Exhibit 10.3 to Current Report on Form 8-K (Commission File No. 001-36559) filed on June 18, 2019).
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(d)(16)
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Employment Agreement, effective as of March 13, 2020, by and between Spark Energy, Inc. and W. Keith Maxwell III (incorporated by reference to Exhibit 10.1 to Current Report on Form 8-K (Commission File No. 001-36559) filed on March 19, 2020).
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(d)(17)
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Employment Agreement, effective as of March 23, 2020, by and between Spark Energy, Inc. and Kevin McMinn (incorporated by reference to Exhibit 10.1 to Current Report on Form 8-K (Commission File No. 001-36559) filed on March 25, 2020).
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(g)
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Not applicable.
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(h)
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Not applicable.
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Item 13.
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Information Required by Schedule 13E-3.
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•
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the satisfaction or waiver of the conditions to the Offer or our ability to complete the Offer;
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•
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potential risks and uncertainties relating to the ultimate impact of COVID-19, including the geographic spread, the severity of the disease, the duration of the COVID-19 outbreak, actions that may be taken by governmental authorities to contain the COVID-19 outbreak or to treat its impact, and the potential negative impacts of COVID-19 on the global economy and financial markets;
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•
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changes in commodity prices;
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•
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the sufficiency of risk management and hedging policies and practices;
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•
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the impact of extreme and unpredictable weather conditions, including hurricanes and other natural disasters;
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•
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federal, state and local regulation, including the industry's ability to address or adapt to potentially restrictive new regulations that may be enacted by public utility commissions;
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•
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our ability to borrow funds and access credit markets;
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•
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restrictions in our debt agreements and collateral requirements;
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•
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credit risk with respect to suppliers and customers;
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•
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changes in costs to acquire customers as well as actual attrition rates;
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•
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accuracy of billing systems;
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•
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our ability to successfully identify, complete, and efficiently integrate acquisitions into our operations;
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•
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significant changes in, or new charges by, the ISOs in the regions in which we operate;
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•
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competition; and
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•
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the “Risk Factors” in our latest Annual Report on Form 10-K for the year ended December 31, 2019, in our Quarterly Reports on Form 10-Q, and other public filings and press releases.
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