SEC Company Response from GRAN TIERRA ENERGY INC. (GTE) (CIK 0001273441) (GTE) — Oct 10, 2008
GRAN TIERRA ENERGY INC. (GTE) (CIK 0001273441)
Date: Oct. 10, 2008 · CIK: 0001273441 · Accession: 0001144204-08-056991
AI Filing Summary & Sentiment
Reasoning
File numbers found in text: 001-34018
Referenced dates: October 7, 2008
Letter
Brett D. White
(650) 843-5191
whitebd@cooley.com
VIA EDGAR
October 9, 2008
Securities and Exchange Commission
F Street, NE
Washington, DC 20549
Re:
Gran Tierra Energy Inc.
SEC File No. 001-34018
Ladies and Gentlemen:
Transmitted for filing on behalf of Gran Tierra Energy Inc. (“Gran Tierra”), is Amendment No. 2 to the to a preliminary Notice of Special Meeting of Stockholders, Proxy Statement and form of Proxy (collectively, the “Preliminary Proxy Statement”) to be used in connection with a Special Meeting of Stockholders of Gran Tierra, currently scheduled to be held on November 14, 2008.
We responded, by letter dated October 7, 2008, to a comment received from the staff (the “Staff”) of the Securities and Exchange Commission (the “Commission”) by letter dated October 7, 2008, with respect to the Preliminary Proxy Statement, and had discussions with the Staff regarding our response on October 8, 2008. The comment regarding the Preliminary Proxy Statement stated that Proposal 3 needed to be “unbundled.” On October 8, 2008, we faxed our changes to the Preliminary Proxy Statement to the Staff in response to the comment, and received a telephone call from Sean Donahue, the examiner, confirming that the changes made in response to comment, as faxed to Mr. Donahue, were responsive and that the Staff had no further comments with respect to the unbundling of Proposal 3.
For the convenience of the Staff, attached is a marked copy of the Preliminary Proxy Statement, reflecting all changes made from Amendment No. 1 to the Preliminary Proxy Statement. Many of the new changes reflect a revision in the Plan of Arrangement that provides that Solana Shareholders who do not return their election form prior to the effective date of the Arrangement will automatically be deemed to elect to receive exchangeable shares if they have a Canadian residence on the Solana Share register, and otherwise will receive Gran Tierra common stock. For the Staff’s convenience, the following is a list of the changes made since Amendment No. 1 that were not reflected in the fax sent to the Staff on October 8, 2008:
Page Number
Description
Cover page
inserted date of Preliminary Proxy Statement, October 10, 2008
Second page of the Gran Tierra letter to stockholders
inserted mailing date, October 16, 2008
Second page of the Solana Resources Limited (“Solana”) letter to stockholders
deleted bolded paragraph
FIVE PALO ALTO SQUARE, 3000 EL CAMINO REAL, PALO ALTO, CA 94306-2155 T: (650) 843-5000 F: (650) 849-7400 WWW.COOLEY.COM
SEC
October 9, 2008
Page Two
First page of the Gran Tierra “Notice of Special Meeting of Stockholders”
inserted date of Notice of Special Meeting of Stockholders, October 10,
First page of the “Notice of Special Meeting of Solana Securityholders”
inserted date of Preliminary Proxy Statement, October 10, 2008
Second page of the “Notice of Special Meeting of Solana Securityholders”
inserted date of Notice of Special Meeting of Solana Securityholders, October 10,
i
inserted date of Preliminary Proxy Statement, October 10, 2008 and inserted date of Court order, October 9, 2008
ii
inserted date of Notice of Petition, October 10, 2008
iii
inserted dates and U.S./Canadian exchange rates as at October 9,
inserted provisions regarding what Solana Shareholders can elect to receive and what will be received by those who fail to make an election, deleted bolded paragraph and deleted “that are not exempt from tax under Part I of the Income Tax Act (Canada) and, in the case of partnerships, are Canadian partnerships for purposes of the Income Tax Act (Canada)”
inserted provision regarding the potential tax impact of rights accompanying the GTE-Solana Exchangeable Shares on certain savings and pension plans and inserted “and election form” in two instances to address the inclusion of an election form with the letter of transmittal
deleted “if a Canadian resident that is not exempt from tax under Part I of the Income Tax Act (Canada) and, if a partnership, is a Canadian partnership for purposes of the Income Tax Act (Canada)”
replaced “non Canadian” with “other”
inserted “can elect”
inserted provisions regarding what Solana Shareholders can elect to receive and what will be received by those who fail to make an election, deleted bolded paragraph
changed page number reference
deleted “that are not exempt from Part I tax under the Income Tax Act (Canada) and, in the case of partnerships, are Canadian partnerships for purposes of the Income Tax Act (Canada)”, replaced “exchange of such shares for shares of Gran Tierra common stock” with “disposition of such shares”
changed page number reference
updated selected pro forma “Balance Sheet Data”, including “Working capital including cash” and “Shareholder’s equity” for the six months ended June 30, 2008
inserted “as of June 30, 2008 and for the”, updated page number references, revised “Statement of Operations Data” line items and reformatted “Balance Sheet Data” table
inserted intended mailing date of Preliminary Proxy Statement, October 16,
FIVE PALO ALTO SQUARE, 3000 EL CAMINO REAL, PALO ALTO, CA 94306-2155 T: (650) 843-5000 F: (650) 849-7400 WWW.COOLEY.COM
SEC
October 9, 2008
Page Three
redefined the negative “ineligible shareholders” as the positive “eligible shareholders”, distinguished what Solana Shareholders who fail to make an election will receive
updated “Background of Arrangement” to include a description of the October 9, 2008 amendment to the Arrangement Agreement
deleted “that are not exempt from tax under Part I tax of the Income Tax Act (Canada) and, in the case of partnerships, are Canadian partnerships for purposes of the Income Tax Act (Canada)” and replaced “non Canadian holders” with “other holders”
replaced “eligible shareholders” and “ineligible shareholders” with references to Solana Shareholders entitled to receive either GTE-Solana Exchangeable Shares or Gran Tierra common stock, respectively
inserted provisions regarding what Solana Shareholders can elect to receive pursuant to the Arrangement and what will be received by those who fail to make an election
changed reference regarding AMEX listing application to reflect an intention to apply in October rather than a specific October application date, inserted bolded provision encouraging consultation with tax advisors, deleted “after the Arrangement” and inserted “particularly registered savings plans.”
corrected number of unvested Solana options held by Solana directors and officers
increased the combined company’s pro forma total shareholders’ equity
updated “Comparative Per Share Market Price Data” table to reflect changes in Gran Tierra’s high and low stock price and volume data for the period from October 1, 2008 through October 8, 2008
updated “Comparative Per Share Market Price Data” table to reflect an increase in Solana’s September “high price” on the AIM and inserted the last closing stock price data for Gran Tierra and Solana as at October 9,
revised the “Book Value per Common Share” figures for both “Pro Forma per Common Share Data” and “Consolidated Equivalent Pro Forma per Common Share Data” for the six months ended June 30, 2008
revised selected pro forma “Balance Sheet Data”, including “Working capital including cash” and “Total Shareholder’s equity”, for the six months ended June 30, 2008
revised the “Warrants” and “Total Shareholders’ Equity” line items of the “Pro Forma Consolidated Capitalization of the Combined Company” outstanding as of June 30, 2008
updated one instance of the beneficial ownership “as of” date not updated in a prior revision
updated the Gran Tierra director and officer group beneficial ownership of options data in footnotes 10 and 4
inserted “as of June 30, 2008 and for the”, updated page number references, revised “Statement of Operations Data” line items and updated basic and diluted income (loss) per common share prices
reformatted “Balance Sheet Data” table
updated page references
updated “Amount and Nature of Beneficial Ownership” and “Percentage of Class” data, including footnotes, for each Solana director and officer to reflect “as of” date change
FIVE PALO ALTO SQUARE, 3000 EL CAMINO REAL, PALO ALTO, CA 94306-2155 T: (650) 843-5000 F: (650) 849-7400 WWW.COOLEY.COM
SEC
October 9, 2008
Page Four
updated footnotes (continued from page 144) related to Solana director and officer beneficial ownership of Solana options to reflect “as of” date change and inserted reference to interim financial statements in Solana’s “Documents Incorporated by Reference”
inserted bolded provision regarding assumptions made with respect to residency of certain Solana Shareholders
inserted “is an Eligible Shareholder and”
inserted section entitled “Exchange of Solana Shares for Gran Tierra Common Stock” regarding certain tax consequences for certain participants under the Arrangement
replaced “Resident Solana Shareholder” with “shareholder”
replaced “when” with “if” and replaced “for GTE-Solana Exchangeable shares” with “under the Arrangement.”
inserted provision encouraging consultation with a tax advisor, providing a “No opinion” disclaimer and describing assumptions regarding residency
corrected a typo in a Gran Tierra Proposal number
inserted date and Gran Tierra closing stock price on AMEX as at October 9,
corrected “Interests of Experts” ownership verification dates for Cooley Godward Kronish LLP and DeGoyler and MacNaughton
removed the “Rollover Warrants” line item from “Liabilities and Shareholders’ Equity” in the Gran Tierra “Pro Forma Consolidated Balance Sheet As at June 30, 2008” and updated data listed under columns “Pro Forma Adjustments”, “Note” and “Pro Forma Consolidated”
Note 1(g) - revised existing reference to Gran Tierra’s liability with respect to warrants and deleted two sentences describing Gran Tierra’s treatment of the fair value of Rollover Warrants as a liability, due to the “Rollover Warrants” line item removal on
Show Raw Text
CORRESP
1
filename1.htm
Brett
D. White
(650)
843-5191
whitebd@cooley.com
VIA
EDGAR
October
9, 2008
Securities
and Exchange Commission
100
F
Street, NE
Washington,
DC 20549
Re:
Gran
Tierra Energy Inc.
SEC
File No. 001-34018
Ladies
and Gentlemen:
Transmitted
for filing on behalf of Gran Tierra Energy Inc. (“Gran
Tierra”),
is
Amendment No. 2 to the to a preliminary Notice of Special Meeting of
Stockholders, Proxy Statement and form of Proxy (collectively, the “Preliminary
Proxy Statement”)
to be
used in connection with a Special Meeting of Stockholders of Gran Tierra,
currently scheduled to be held on November 14, 2008.
We
responded, by letter dated October 7, 2008, to a comment received from the
staff
(the “Staff”)
of the
Securities and Exchange Commission (the “Commission”)
by
letter dated October 7, 2008, with respect to the Preliminary
Proxy Statement,
and had
discussions with the Staff regarding our response on October 8, 2008.
The
comment regarding the Preliminary Proxy Statement stated
that Proposal 3 needed to be “unbundled.” On October 8, 2008, we faxed our
changes to the Preliminary Proxy Statement to the Staff in response to the
comment, and received a telephone call from Sean Donahue, the examiner,
confirming that the changes made in response to comment, as faxed to Mr.
Donahue, were responsive and that the Staff had no further comments with
respect
to the unbundling of Proposal 3.
For
the
convenience of the Staff, attached is a marked copy of the Preliminary
Proxy Statement,
reflecting all changes made from Amendment No. 1 to the Preliminary Proxy
Statement. Many of the new changes reflect a revision in the Plan of Arrangement
that provides that Solana Shareholders who do not return their election form
prior to the effective date of the Arrangement will automatically be deemed
to
elect to receive exchangeable shares if they have a Canadian residence on
the
Solana Share register, and otherwise will receive Gran Tierra common stock.
For
the Staff’s convenience, the following is a list of the changes made since
Amendment No. 1 that were not
reflected in the fax sent to the Staff on October 8, 2008:
Page
Number
Description
Cover
page
inserted
date of Preliminary Proxy Statement, October 10, 2008
Second
page of the Gran Tierra letter to stockholders
inserted
mailing date, October 16, 2008
Second
page of the Solana Resources Limited (“Solana”)
letter to stockholders
deleted
bolded paragraph
FIVE
PALO ALTO SQUARE, 3000 EL CAMINO REAL, PALO ALTO, CA
94306-2155 T: (650) 843-5000 F: (650) 849-7400 WWW.COOLEY.COM
SEC
October
9, 2008
Page
Two
First
page of the Gran Tierra “Notice of Special Meeting of
Stockholders”
inserted
date of Notice of Special Meeting of Stockholders, October 10,
2008
First
page of the “Notice of Special Meeting of Solana
Securityholders”
inserted
date of Preliminary Proxy Statement, October 10, 2008
Second
page of the “Notice of Special Meeting of Solana
Securityholders”
inserted
date of Notice of Special Meeting of Solana Securityholders, October
10,
2008
i
inserted
date of Preliminary Proxy Statement, October 10, 2008 and inserted
date of
Court order, October 9, 2008
ii
inserted
date of Notice of Petition, October 10, 2008
iii
inserted
dates and U.S./Canadian exchange rates as at October 9,
2008
5
inserted
provisions regarding what Solana Shareholders can elect to receive
and
what will be received by those who fail to make an election,
deleted bolded paragraph and deleted “that are not exempt from tax under
Part I of the Income
Tax Act (Canada)
and, in the case of partnerships, are Canadian partnerships for
purposes
of the Income
Tax Act (Canada)”
6
inserted
provision regarding the potential tax impact of rights accompanying
the
GTE-Solana Exchangeable Shares on certain savings and pension plans
and
inserted “and election form” in two instances to address the inclusion of
an election form with the letter of transmittal
7
deleted
“if a Canadian resident that is not exempt from tax under Part I
of the
Income
Tax Act (Canada)
and, if a partnership, is a Canadian partnership for purposes of
the
Income
Tax Act (Canada)”
9
replaced
“non Canadian” with “other”
10
inserted
“can elect”
11
inserted
provisions regarding what Solana Shareholders can elect to receive
and
what will be received by those who fail to make an election, deleted
bolded paragraph
13
changed
page number reference
17
deleted
“that are not exempt from Part I tax under the Income
Tax Act (Canada)
and, in the case of partnerships, are Canadian partnerships for purposes
of the Income
Tax Act (Canada)”,
replaced “exchange of such shares for shares of Gran Tierra common stock”
with “disposition of such shares”
18
changed
page number reference
19
updated
selected pro forma “Balance Sheet Data”, including “Working capital
including cash” and “Shareholder’s equity” for the six months ended June
30, 2008
22
inserted
“as of June 30, 2008 and for the”, updated page number references, revised
“Statement of Operations Data” line items and reformatted “Balance Sheet
Data” table
30
inserted
intended mailing date of Preliminary Proxy Statement, October 16,
2008
FIVE
PALO
ALTO SQUARE, 3000 EL CAMINO REAL, PALO ALTO, CA 94306-2155 T: (650)
843-5000 F:
(650) 849-7400 WWW.COOLEY.COM
SEC
October
9, 2008
Page
Three
38
redefined
the negative “ineligible shareholders” as the positive “eligible
shareholders”, distinguished what Solana Shareholders who fail to make an
election will receive
43
updated
“Background of Arrangement” to include a description of the October 9,
2008 amendment to the Arrangement Agreement
44
deleted
“that are not exempt from tax under Part I tax of the Income
Tax Act (Canada)
and, in the case of partnerships, are Canadian partnerships for
purposes
of the Income
Tax Act (Canada)”
and replaced “non Canadian holders” with “other
holders”
61
replaced
“eligible shareholders” and “ineligible shareholders” with references to
Solana Shareholders entitled to receive either GTE-Solana Exchangeable
Shares or Gran Tierra common stock, respectively
74
inserted
provisions regarding what Solana Shareholders can elect to receive
pursuant to the Arrangement and what will be received by those
who fail to
make an election
79
changed
reference regarding AMEX listing application to reflect an intention
to
apply in October rather than a specific October application date,
inserted
bolded provision encouraging consultation with tax advisors, deleted
“after the Arrangement” and inserted “particularly registered savings
plans.”
82
corrected
number of unvested Solana options held by Solana directors and
officers
84
increased
the combined company’s pro forma total shareholders’
equity
85
updated
“Comparative Per Share Market Price Data” table to reflect changes in Gran
Tierra’s high and low stock price and volume data for the period from
October 1, 2008 through October 8, 2008
87
updated
“Comparative Per Share Market Price Data” table to reflect an increase in
Solana’s September “high price” on the AIM and inserted the last closing
stock price data for Gran Tierra and Solana as at October 9,
2008
88
revised
the “Book Value per Common Share” figures for both “Pro Forma per Common
Share Data” and “Consolidated Equivalent Pro Forma per Common Share Data”
for the six months ended June 30, 2008
89
revised
selected pro forma “Balance Sheet Data”, including “Working capital
including cash” and “Total Shareholder’s equity”, for the six months ended
June 30, 2008
99
revised
the “Warrants” and “Total Shareholders’ Equity” line items of the “Pro
Forma Consolidated Capitalization of the Combined Company” outstanding as
of June 30, 2008
104
updated
one instance of the beneficial ownership “as of” date not updated in a
prior revision
105
updated
the Gran Tierra director and officer group beneficial ownership
of options
data in footnotes 10 and 4
129
inserted
“as of June 30, 2008 and for the”, updated page number references, revised
“Statement of Operations Data” line items and updated basic and diluted
income (loss) per common share prices
130
reformatted
“Balance Sheet Data” table
131
updated
page references
144
updated
“Amount and Nature of Beneficial Ownership” and “Percentage of Class”
data, including footnotes, for each Solana director and officer
to reflect
“as of” date change
FIVE
PALO
ALTO SQUARE, 3000 EL CAMINO REAL, PALO ALTO, CA 94306-2155 T: (650)
843-5000 F:
(650) 849-7400 WWW.COOLEY.COM
SEC
October
9, 2008
Page
Four
145
updated
footnotes (continued from page 144) related to Solana director
and officer
beneficial ownership of Solana options to reflect “as of” date change and
inserted reference to interim financial statements in Solana’s “Documents
Incorporated by Reference”
157
inserted
bolded provision regarding assumptions made with respect to residency
of
certain Solana Shareholders
158
inserted
“is an Eligible Shareholder and”
161
inserted
section entitled “Exchange of Solana Shares for Gran Tierra Common Stock”
regarding certain tax consequences for certain participants under
the
Arrangement
162
replaced
“Resident Solana Shareholder” with “shareholder”
163
replaced
“when” with “if” and replaced “for GTE-Solana Exchangeable shares” with
“under the Arrangement.”
166
inserted
provision encouraging consultation with a tax advisor, providing
a “No
opinion” disclaimer and describing assumptions regarding
residency
178
corrected
a typo in a Gran Tierra Proposal number
181
inserted
date and Gran Tierra closing stock price on AMEX as at October
9,
2008
188
corrected
“Interests of Experts” ownership verification dates for Cooley Godward
Kronish LLP and DeGoyler and MacNaughton
190
removed
the “Rollover Warrants” line item from “Liabilities and Shareholders’
Equity” in the Gran Tierra “Pro Forma Consolidated Balance Sheet As at
June 30, 2008” and updated data listed under columns “Pro Forma
Adjustments”, “Note” and “Pro Forma Consolidated”
195
Note
1(g) - revised existing reference to Gran Tierra’s liability with respect
to warrants and deleted two sentences describing Gran Tierra’s treatment
of the fair value of Rollover Warrants as a liability, due to the
“Rollover Warrants” line item removal on