Company Name: Edge Petroleum Corp.
Public Availability Date: February 25, 2004Document Sections:INQUIRY LETTER
INQUIRY LETTER
APPENDIX
INQUIRY LETTER
INQUIRY LETTER
INQUIRY LETTER
INQUIRY LETTER
STAFF REPLY LETTER [INQUIRY LETTER]
January 13, 2004 Office of Chief Counsel
Division of Corporation Finance
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
RE: Request for No-Action Letter from Edge Petroleum Corporation as to Exclusion
from Proxy Materials of Shareholder Proposal Submitted by Marlin Capital Corp.,
The Private Investment Fund LP and Mark G. Egan Ladies and Gentlemen:
Edge Petroleum Corporation, a Delaware corporation (the "Company"), is
submitting this letter pursuant to Rule 14a-8(j) under the Securities Exchange
Act of 1934, as amended, to notify the Securities and Exchange Commission (the
"Commission") of the Company's intention to exclude a shareholder proposal (the
"Proposal") submitted by Marlin Capital Corp., The Private Investment Fund LP
and Mark G. Egan (the "Proponents") from its proxy statement and form of proxy
(together, the "Proxy Materials") for its 2004 annual meeting of shareholders
(the "Annual Meeting"). A copy of the Proponent's correspondence dated January
7, 2004, including the Proposal, is attached hereto as Exhibit A. The Company
asks that the Division of Corporation Finance not recommend to the Commission
that any enforcement action be taken if the Company excludes the Proposal from
its Proxy Materials, for the reason that the Proposal was not timely submitted
under Rule 14a-8(e). The Company intends to file its definitive Proxy Materials
for the Annual Meeting on or about April 5, 2004, and the Annual Meeting is
scheduled to occur on or about May 5, 2004. The Company received the Proponents' letter dated January 7, 2004 by facsimile
on January 7, 2003 and by Federal Express on January 8, 2004. The deadline for
submission of proposals for the Annual Meeting under Rule 14a-8 was December 9,
2003, as indicated in the excerpt set forth below from page 22 of the Company's
proxy statement, dated April 7, 2003, relating to its 2003 annual meeting:
Stockholder ProposalsRule 14a-8 under the Securities Exchange Act of 1934, as
amended, addresses when a company must include a stockholder's proposal in its
Proxy Statement and identify the proposal in its form of proxy when the company
holds an annual or special meeting of stockholders. Under Rule 14a-8, proposals
that stockholders intend to have included in the Company's Proxy Statement and
form of proxy for the 2004 Annual Meeting of Stockholders must be received by
the Company no later than December 9, 2003. However, if the date of the 2004
Annual Meeting of Stockholders changes by more than 30 days from the date of the
2003 Annual Meeting of Stockholders, the deadline by which proposals must be
received is a reasonable time before the Company begins to print and mail its
proxy materials, which deadline will be set forth in a Quarterly Report on Form
10-Q or will otherwise be communicated to stockholders. Stockholder proposals
must also be otherwise eligible for inclusion. The same information was included on page 107 of the Company's joint proxy
statement/prospectus dated October 31, 2003 for a special meeting of
stockholders called to approve a merger transaction. Rule 14a-8(e)(2) provides that, in order to meet the deadline for submitting
proposals, a shareholder proposal must be received at the company's principal
executive offices not less than 120 calendar days before the date of the
company's proxy statement released to shareholders in connection with the
previous year's annual meeting. In the case of the Company, the 120th day before
such date was December 9, 2003, as indicated in both of the 2003 proxy
statements. The Staff has strictly construed the deadline, permitting companies
to exclude proposals received at the company's executive offices even one day
past the deadline. See, e.g., Viacom Inc. (March 10, 2003); SBC Communications
Inc. (December 24, 2002); and Hewlett-Packard Company (November 27, 2000). See
also Actuant Corporation (November 26, 2003). The Proponents failed to deliver
the Proposal to the Company's principal executive office on or before the
December 9, 2003 deadline, as required by Rule 14a-8(e) and set forth in both of
the Company's 2003 proxy statements. For the reasons set forth above, the Company respectfully requests the
concurrence by the Staff in its determination to omit the Proposal from the
Company's Proxy Materials under Rule 14a-8(e) and requests that the Staff
indicate that it will not recommend enforcement action to the Commission if the
Company omits such Proposal. In accordance with Rule 14a-8(j), six copies of this letter, including Exhibit
A, are enclosed, and a copy of this letter is being sent to the Proponents.
Please acknowledge receipt of the enclosed materials by date-stamping the
enclosed receipt copy of this letter and returning it in the enclosed
self-addressed stamped envelope. If you have any questions regarding this
request or require additional information, please contact the undersigned at
telephone (713) 427-8814 or facsimile (713) 654-7722. Very truly yours,
EDGE PETROLEUM CORPORATION /s/
Robert C. Thomas
Vice President, General Counsel and Corporate Secretary
Enclosures cc: Marlin Capital Corp. The Private Investment Fund LP Mark G. Egan [INQUIRY LETTER]
January 7, 2004 VIA FedEX & VIA Facsimile
Robert C. Thomas
Corporate Secretary
Edge Petroleum Corporation
1301 Travis
Suite 2000
Houston, TX 77002
Re: Notice of Intention to Present Business at 2004 Annual Meeting
Dear Mr. Thomas We have been advised that January 8, 2004 is the deadline for a stockholder to
submit a proposal for inclusion in the 2004 Annual Meeting of Stockholders (the
"2004 Annual Meeting") of Edge Petroleum Corporation (the "Corporation"). In
accordance with Section 2.8(a) of the Corporation's Second Amended Bylaws (the
"Bylaws") and pursuant to Rule 14a-8 of the Securities Exchange Act of 1934
("Rule 14a-8"), this letter serves as notice that Marlin Capital Corp., The
Private Investment Fund, LP and Mark G. Egan (collectively, the "Holders"),
stockholders of record of the Corporation, respectfully submit a proposal to
reduce the number of directors on the board of directors of the Corporation as
set forth on Schedule 1 attached hereto (the "Proposal") for inclusion in the
Corporation's proxy statement and proxy card for the 2004 Annual Meeting.
The following is the information required by the Bylaws and Rule 14a-8 with
respect to the Proposal: (i) A description of the Proposal and reason for submission at the 2004 Annual
Meeting: See Schedule 1 attached hereto.
(ii) Name and address of the stockholder(s) submitting the Proposal:
Marlin Capital Corp.
John Hancock Center
875 N. Michigan Ave., Suite 3412
Chicago, Illinois 60611 - 1896 The Private Investment Fund LP
John Hancock Center
875 N. Michigan Ave., Suite 3412
Chicago, Illinois 60611 - 1896 Mark G. Egan
John Hancock Center
875 N. Michigan Ave., Suite 3412
Chicago, Illinois 60611 - 1896 (iii) Class and number of shares of the Corporation which are owned beneficially
by the Holders submitting the Proposal: The Holders hereby represent that they (a) are the beneficial owners of record
of 941,000 of common stock of the Corporation entitled to vote for the election
of directors on the date hereof, (b) have held such shares at all time since at
least one year prior to the date hereof and that such shares have a market value
of at least $2,000, and (c) intend to continue to hold such shares through at
least the date following the date of the 2004 Annual Meeting.
(iv) Financial or other interest in submitting the Proposal:
Other than the Holders' interest as stockholders of the Corporation in
increasing the efficiency and effectiveness of the board of directors as
referenced in the Proposal, the Holders have no financial or other interest in
submitting the Proposal. (v) Intention to appear in person or by proxy:
By signature below, the Holders represent that they intend to appear in person
or by proxy through their authorized representative at the 2004 Annual Meeting
to present the Proposal. The Holders request written notice as soon as practicable of any alleged defect
in this Notice or the Proposal and reserve the right, following receipt of any
such notice, to either challenge, or attempt as soon as practicable to cure,
such alleged defect. The Holders reserve the right to give notice of their
intention to present additional business for consideration at the 2004 Annual
Meeting or other meeting of the Corporation's stockholders, or to revise the
business described herein. Sincerely,
MARLIN CAPITAL CORP. By: /s/
Name: Mark G. Egan Its: President
THE PRIVATE INVESTMENT FUND LP, BY ITS GENERAL PARTNER MARLIN CAPTTAL CORP.
By: /s/ Name: Mark G. Egan
Its: President MARK G. EGAN, individually
/s/ [APPENDIX]
SCHEDULE 1 Stockholder Proposal Concerning the Size of the Board of Directors
Marlin Capital Corp., the Private Investment Fund LP and Mark G. Egan
collectively have given notice that they intend to present for action at the
2004 Annual Meeting the following proposal: RESOLVED: The stockholders of Edge Petroleum Corporation (the "Corporation")
hereby request the board of directors take all steps necessary to change the
composition of the board of directors by reducing the actual number of incumbent
directors from the current number of eight to five directors. The board of
directors should implement the proposal above by means of By-Law changes and/or
other necessary procedures in accordance with applicable law. This proposal
would be effective for nominees for director at meetings subsequent to the 2004
Annual Meeting and need, therefore, not affect the unexpired terms of the
existing directors. SUPPORTING STATEMENT FROM SHAREHOLDERS
The effective structure and functioning of the board of directors are considered
by most observers to be of paramount importance in ensuring the long-term
success of a company. Issues relating to the board are viewed as appropriate for
shareholder involvement because directors are shareholders' elected
representatives. In order to promote a more efficient, functional and flexible
board, there should be fewer directors. We believe that the current number of
directors is excessive and not in the best interest of the Corporation and its
stockholders. We believe that smaller boards are often more cohesive and work more effectively
than large boards. In addition, a smaller board will permit the Corporation
greater flexibility by allowing the directors to have more face-to-face meetings
on shorter notice throughout the year. Currently the number of directors on the
Corporation's board is eight, which we believe is grossly out of proportion to
the optimal size for a company with fewer than 35 employees in the oil and gas
exploration industry, especially given the Corporation's current market
capitalization. Moreover, the only reason that the Corporation's board now has
eight directors rather than nine, is because earlier this year one director
resigned and the board decided not to fill the vacancy. This proposal is not intended to effectuate a direct change of control of the
Corporation. Rather, we simply desire the Corporation to be more flexible. The
current number of directors is unwieldy and only serves the entrenched interests
of the current board, rather than the interests of the Corporation and its
stockholders. We believe that five directors is the most favorable number and we
therefore urge our fellow stockholders to support this reform.
WE URGE YOU TO VOTE FOR THIS PROPOSAL. [INQUIRY LETTER]
January 15, 2004 Office of Chief Counsel
Division of Corporation Finance
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Letter dated January 13, 2004 from Edge Petroleum Corporation Requesting
No-Action Letter as to Exclusion from Proxy Materials of Shareholder Proposal
Submitted by Marlin Capital Corp., The Private Investment Fund LP and Mark G.
Egan Ladies and Gentlemen: Edge Petroleum Corporation, a Delaware corporation (the "Company"), submitted a
letter dated January 13, 2004 pursuant to Rule 14a-8(j) under the Securities
Exchange Act of 1934, as amended, to notify the Securities and Exchange
Commission (the "Commission") of the Company's intention to exclude a
shareholder proposal (the "Proposal") submitted by Marlin Capital Corp., The
Private Investment Fund LP and Mark G. Egan from its proxy statement and form of
proxy (together, the "Proxy Materials") for its 2004 annual meeting of
shareholders (the "No-Action Request"). A copy of the No-Action Request is
attached hereto as Exhibit A. The purpose of this letter is to correct a typographical error contained in the
first sentence of the second paragraph of the No-Action Request, which reads,
"The Company received the Proponents' letter dated January 7, 2004 by facsimile
on January 7, 2003 and by Federal Express on January 8, 2004." The Company
received the Proponents' letter by facsimile on January 7, 2004, and not on
January 7, 2003 as is indicated erroneously in the No-Action Request.
Accordingly, as discussed in more detail in the No-Action Request, the
submission was not timely under Rule 14a-8(e)(2). The Company asks that the
Division of Corporation Finance not recommend to the Commission that any
enforcement action be taken if the Company excludes the Proposal from its Proxy
Materials, for the reason that the Proposal was not timely submitted under Rule
14a-8(e). In accordance with Rule 14a-8(j), six copies of this letter, including Exhibit
A, are enclosed, and a copy of this letter is being sent to the Proponents.
Please acknowledge receipt of the enclosed materials by date-stamping the
enclosed receipt copy of this letter and returning it in the enclosed
self-addressed stamped envelope. If you have any questions regarding this
request or require additional information, please contact the undersigned at
telephone (713) 427-8814 or facsimile (713) 654-7722. January 15, 2004
Page Two Very truly yours,
EDGE PETROLEUM CORPORATION /s/
Robert C. Thomas
Vice President, General Counsel and Corporate
Secretary RCT/km
Enclosures cc: Marlin Capital Corp.
The Private Investment Fund LP
Mark G. Egan [INQUIRY LETTER]
January 27, 2004 Office of Chief Counsel
Division of Corporation Finance
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
RE: Stockholder Proposal to Reduce the Number of Directors on the Board of
Directors of Edge Petroleum Corporation (the "Corporation")
Ladies and Gentlemen: This letter is in response to the January 13, 2004 letter from Robert C. Thomas,
General Counsel of the Corporation (the "Board's Response"). The Corporation
seeks to omit the proposal submitted on behalf of Marlin Capital Corp., the
Private Investment Fund LP, and Mark G. Egan (collectively, the "Proponents"),
entitled, "Stockholder Proposal Concerning the Size of the Board of Directors,"
by asserting that it was not timely submitted under Rule 14a-8(e). However, the
Proponents believe that by its correspondence from Mr. Thomas dated June 4, 2003
(a copy of which is attached as Exhibit 4 to the Proponents 13(d) filed on
January 7, 2004, the "June Letter"), the Corporation either (i) explicitly
amended the deadline by which stockholder proposals were to be submitted or (ii)
mislead the Proponents regarding the deadline for submission of proposals.
Either way, the Proponents respectfully request that the Staff deny the
Corporation's request for no action relief. Initially, please note that the Board's Response acknowledges that the
Proponents' stockholder proposal was received by the Corporation by facsimile on
January 7, 2004 (error corrected in January 15, 2004 correspondence from Mr.
Thomas) and by Federal Express on January 8, 2004. This acknowledgement is
critical to the Proponents' belief that its stockholder proposal should be
included in the Corporation's proxy materials for its 2004 annual meeting of
stockholders (the "Annual Meeting"), as will be explained more fully below.
In response to several attempts by the Proponents to have the Corporation's
board of directors address certain issues related to corporate governance, Mr.
Thomas detailed in the June Letter the requirements necessary for a stockholder
proposal to be included in the proxy materials for the Annual Meeting. The
deadline for submission of proposals for the Annual Meeting, as explicitly
stated in the excerpt set forth below from the June Letter, was January 8, 2004:
"... if the date of the 2004 Annual Meeting of Stockholders is not more than 30
days before, nor more than 60 days after, the first anniversary of the date of
the 2003 Annual Meeting, stockholders who wish to nominate directors or to bring
other business before the 2004 Annual Meeting of Stockholders must notify the
Company no later than January 8, 2004." Throughout the rest of 2003 the Proponents continued to attempt to work with the
Corporation's board of directors to institute fundamental changes in the
Corporation's corporate governance. However, late in that same year, it became
clear to the Proponents that the only way to institute any changes was going to
be through a mandate of the Corporation's stockholders. Relying on the June
Letter and the deadline contained therein for the submission of stockholder
proposals pursuant to Rule 14a-8, the Proponents submitted their proposal on
January 7, 2004 for inclusion in the proxy materials for the Annual Meeting.
In the June Letter, the paragraph following the language quoted above begins
with the following sentence: "Please note that compliance with the above
procedures does not require the Company to include the proposal in the Company's
proxy solicitation material, which is a separate matter governed by Rule 14a-8
under the Securities Exchange Act of 1934 as amended." It is unclear which
`procedures' the Corporation is referring to in this statement, since the entire
page preceding this sentence contains what could be referred to as `procedures.'
If anything, this sentence appears to direct the Proponents to Rule 14a-8 for
procedures related to substance and content, rather than for a submission
deadline. In fact, the way the June Letter is written implies that the deadline
for submission outlined therein is an entirely separate matter from any
procedure that must be fulfilled under Rule 14a-8. The June Letter directs the
Proponents to the 2003 proxy materials as a statement of the deadline and
procedures to be followed for the submission of a proposal, however the June
Letter then goes on to purport to amend one very important `procedure', the
submission deadline. The final paragraph of the June Letter begins with a sentence that states: "The
foregoing information supercedes some of the information included under
"Additional InformationStockholder Proposals" in the Company's Proxy Statement
dated April 7, 2003" (emphasis added). So in the same letter that is intended to
assist the Proponents in submitting a stockholder proposal, the Corporation has
both referred the Proponents to the April 7 proxy filing and superceded some of
the information contained in that same filing. Upon further investigation, the
only information that is conflicting between the June Letter and the April 7
proxy filing is the deadline for submitting a stockholder proposal pursuant to
Rule 14a-8. This logic applies equally to the Corporation's October 31, 2003
proxy statement/prospectus filing which simply repeats practically verbatim the
information found in the April 7 proxy filing. We would not presume that the Corporation would intentionally mislead the
Proponents. However, there is only one material difference between the June
Letter and the Corporation's April 7 proxy and October 31 proxy filing, that
being the date for stockholder proposals. One need not guess what information is
the "some" that is superceded by the June Letter, as the date is the only
difference. Therefore, the Proponents can only conclude that the Corporation
intended to explicitly amend the date by which proposals were to be submitted
from December 9, 2003 to January 8, 2004 as expressly indicated in the June
Letter. Based on this logic, given the fact that the Proponent's proposal was
submitted before the January 8, 2004 deadline, we believe the Proponents'
proposal should be included in the Corporation's proxy materials for 2004.
In the Board's Response, Mr. Thomas cites several no-action letters where the
Staff has strictly construed the deadline for stockholder proposal submissions.
However, none of the cited precedent is applicable due to the fact that these
no-action letters do not deal with a situation where the issuer explicitly
informed a proponent of a deadline for filing a shareholder proposal for which
the proponent relied. Instead, the Proponents would believe more applicable
precedent can be found in the Staff Legal Bulletin, No. 14 (July 13, 2001)
question 6, where the Staff expresses its view that each proposal will be
evaluated in light of the situation surrounding that particular proposal
submission. The Corporation has a history, as indicated in the Proponents' 13(d) filing, of
avoiding critical corporate governance issues through technicalities rather than
addressing these issues head-on by putting them to a stockholder vote. Once
again, rather than being straight forward with its stockholders, the Corporation
is attempting to exclude the Proponents' proposal based on linguistic wrangling
and technicalities. However, we respectfully request that the Staff carefully
review the Corporation's statements in its June Letter and view these statements
in light of their most direct meaning. A stockholder should not have to
`interpret' correspondence from an issuer, especially when that stockholder
relies on the issuer's direction on matters pertaining to corporate governance
and submission deadlines. Please let the stockholders be the ultimate
arbitrators of this argument by denying the Corporation's request for no-action
treatment. If the Staff has any questions or concerns please do not hesitate to call. Thank
you very much for your attention to this matter. Very Truly Yours,
MARLIN CAPITAL CORP. By./s/
Name: Mark G. Egan Its: President
THE PRIVATE INVESTMENT FUND LP, BY ITS GENERAL PARTNER, MARLIN CAPITAL CORP.
By./s/ Name: Mark G. Egan
Its: President MARK G. EGAN, individnally
/s/ cc: Robert C. Thomas
Vice President, General Counsel and
Corporate Secretary [INQUIRY LETTER]
January 28, 2004 Office of Chief Counsel
Division of Corporation Finance
Securities And Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Letter dated January 27, 2004 from Marlin Capital Corporation, The Private
Investment Fund, LP and Mark G. Egan regarding Shareholder Proposal to Reduce
the Number of Directors on the Board of Edge Petroleum Corporation
Ladies and Gentlemen: Edge Petroleum Corporation, a Delaware corporation (the "Company") appreciates
this opportunity to respond to the captioned letter from Marlin Capital
Corporation, The Private Investment Fund, LP and Mark G. Egan (collectively, the
"Proponents") dated January 27, 2004 (the "Response"). The Response was sent in
reply to the Company's letters dated January 13, 2004 and January 15, 2004
(together, the "No-Action Request") advising the Securities and Exchange
Commission (the "Commission") of the Company's intention to exclude a
shareholder proposal submitted by the Proponents from the Company's proxy
statement and form of proxy (together, the "Proxy Materials") for its 2004
annual meeting of shareholders (the "2004 Annual Meeting"). A copy of the
No-Action Request (duplicative exhibits thereto omitted) and the Proponent's
Response are attached hereto as Exhibits "A" and "B" respectively.
By way of background and in the interest of clarification of the Proponents'
concerns, we note that in the case of the Company, as with most public companies
and as referenced in Rule 14a-5(e) under the Securities Exchange Act of 1934
("Rule 14a-5(e)"), there are two different deadlines relevant to shareholder
proposals. In order to be eligible for consideration at all at a meeting of
shareholders, a shareholder proposal must be submitted in advance of the
deadline provided for in the Company's bylaws. In the case of the Company's 2004
Annual Meeting, the "advance notice deadline" under the Company's bylaws was
January 8, 2004. Compliance with this bylaw provision deadline means that a
proposal, if otherwise eligible, is in order and can be brought up for a vote of
shareholders at the annual meeting. However, compliance with the bylaw advance
notice deadline does not mean that the Company must include the shareholder
proposal in the Company's Proxy Materials. In order to be eligible for inclusion
in the Company's Proxy Materials, a shareholder proposal must also be submitted
in advance of the deadline provided for under Rule 14a-8 under the Securities
Exchange Act of 1934 ("Rule 14a-8") and comply with the other requirements of
that rule. In the case of the Company's 2004 Annual Meeting, the deadline under
Rule 14a-8that is, the deadline for submission of a shareholder proposal for
purposes of considering whether it is eligible to be included in the Company's
Proxy Materialswas December 9, 2003. Also by way of background, we note that the advance notice provisions of the
Company's bylaws were amended after the Company's 2003 annual meeting of
shareholders. By contrast, the deadline under Rule 14a-8 for submission of a
shareholder proposal for inclusion in the Company's Proxy Materials was never
changed. The disclosure regarding both the Rule 14a-8 deadline and the bylaw
advance notice deadline required by Rule 14a-5(e) that appeared in the Company's
proxy statement dated April 7, 2003 for its 2003 annual meeting is attached
hereto as Exhibit C (the "2003 Annual Meeting Proxy Statement"). The amendment
to the bylaws changed the deadline under the bylaws for shareholder proposals to
be considered at the 2004 Annual Meeting and subsequent annual meetings. The
Company disclosed this change in its Quarterly Report on Form 10-Q for the
quarter ended March 31, 2003 ("the 10-Q," relevant excerpts of which are
attached hereto as Exhibit D). In addition, the Company's proxy statement dated
October 31, 2003 for a special meeting of shareholders included disclosure of
the new deadline under the bylaws ("the Merger Proxy Statement," relevant
excerpts of which are attached hereto as Exhibit E). Moreover, although not
required to do so, the Company notified Mr. Egan (who is one of the Proponents
and an affiliate of the other two Proponents) of the bylaw amendment and the new
deadline under the bylaws in a letter dated June 4, 2003 (the "June Letter",
which is attached hereto as Exhibit F), due to their prior discussions regarding
shareholder proposals. At no point was the deadline under Rule 14a-8, or
disclosure regarding that deadline, changed in any regard. The deadline under
Rule 14a-8 was at all times December 9, 2003, the date disclosed in the 2003
Annual Meeting Proxy Statement, the 10-Q and the Merger Proxy Statement.
In the first paragraph of their Response, the Proponents suggest that in the
Company's June Letter the Company either explicitly amended the deadline by
which shareholder proposals were to be submitted in order to be included in the
Company's Proxy Materials under Rule 14a-8 or misled the Proponents regarding
the Rule 14a-8 deadline. The Company did neither. The purpose of the June Letter
was, as a courtesy, to emphasize to Mr. Egan that the Board of Directors of the
Company had amended its bylaws to change the deadline by which advance notice by
a stockholder of any business to be brought before an annual meeting of
stockholders must be given to the Secretary of the Company. We advised him in
the June Letter that generally, for new business to be brought by stockholder
before an annual meeting, written notice of the proposal must be given no less
than 120 days prior to the anniversary of the prior year's meeting, with certain
exceptions if the date of the annual meeting is different by more than specified
amounts from the anniversary date of the prior year's meeting. Accordingly, we
advised Mr. Egan in the June Letter that stockholders who wish to nominate
directors or bring other matters before the 2004 Annual Meeting must notify the
Company no later than January 8, 2004. The Company also emphasized to Mr. Egan in the June Letter that compliance with
the bylaw advance notice procedures relating to shareholder proposals to be
brought before an annual meeting of stockholders "does not require the Company
to include the proposal in the Company's proxy solicitation materials, which is
a separate matter governed by Rule 14a-8 under the Securities Act of 1934, as
amended. Rule 14a-8 addresses when a Company must include a stockholders
proposal in its proxy statement and identify the proposal in its form of proxy
when the company holds an annual or special meeting of stockholders." In the
June Letter, having explained the separate nature of the Rule 14a-8
requirements, we then referred Mr. Egan to the 2003 Annual Meeting Proxy
Statement for its additional discussion of Rule 14a-8. The 2003 Annual Meeting
Proxy Statement states the following on page 22: "Under Rule 14a-8, proposals that stockholders intend to have included in the
Company's Proxy Statement and form of proxy for the 2004 Annual Meeting of
Stockholders must be received by the Company no later than December 9, 2003."
Exactly the same statement is contained in the 10-Q and the Merger Proxy
Statement. The Proponents contend in their Response that in the June Letter the Company
either changed its Rule 14a-8 deadline or misled the Proponents as to the Rule
14a-8 deadline. In fact, as discussed in the foregoing paragraph, the Company
went to considerable pains in the June Letter to point out the existence of an
independent requirement under Rule 14a-8 should Mr. Egan wish to have a proposal
not only considered at a shareholder meeting, but also included in the Company's
proxy statement. In their Response, the Proponents state that "the way the June
Letter is written implies that the deadline for submission outlined therein is
an entirely separate matter from any procedures that must be fulfilled under
14a-8." That is in fact the case and is exactly what the language from the June
Letter quoted in the foregoing paragraph was intended to convey. It appears that
the Proponents' contentions in their Response are based on the misconception
that the advance notice bylaw deadline and the Rule 14a-8 deadline are the same
or are dependent on one another, which is not typically the case for a public
company and is not the case for the Company. For example, the Proponents
indicate in the Response that in the first sentence of the fourth paragraph of
the Company's June Letter it was unclear what the reference to "above
procedures" is referring to "since the entire page preceding this sentence
contains what could be referred to as `procedures." The first three paragraphs
of the June Letter are indeed a discussion of the amendment to the bylaw advance
notice provision and a discussion of the procedures thereunderthat is obviously
what the reference to "above procedures" was intended to refer to. In those
foregoing first three paragraphs of the June Letter, there is no discussion of
Rule 14a-8 or of how one qualifies a proposal for inclusion in the Company's
proxy statement. Likewise, the Response contains a somewhat confusing and
erroneous discussion regarding the Company's statement in its June Letter that
the information in the June Letter superseded "some" of the information included
under "Additional InformationStockholder Proposals" in the 2003 Annual Meeting
Proxy Statement. In the Response, the Proponents indicate that the only
difference between the June Letter and that section of the 2003 Annual Meeting
Proxy Statement is the date of the deadline under Rule 14a-8. That is simply
incorrect and further indicates apparent confusion on the part of the Proponents
over the difference between the bylaw advance notice provision deadline and the
Rule 14a-8 deadline. The June Letter does not in any way supersede the
discussion in the 2003 Annual Meeting Proxy Statement of the Rule 14a-8
deadline. The difference being referred to in the June Letter was the change in
the date of the deadline under the advance notice provision of the bylawsthis
change was after all, the purpose of the June Letter. Since the bylaw advance
notice deadline had changed, the discussion of that date in the 2003 Annual
Meeting Proxy Statement was of course superseded. There is no indication in the
June Letter that the 2003 Annual Meeting Proxy Statement discussion of Rule
14a-8 was superseded; in fact, the Company refers Mr. Egan to that very
discussion for more details on the Rule 14a-8 requirements.
The deadline for submission of a shareholder proposal in order for it to be
eligible for inclusion in the Company's Proxy Materials was and always has been
December 9, 2003. There is no dispute that the Proposal was submitted after
December 9, 2003. Accordingly, the Proposal was not submitted timely under Rule
14a-8. The Company respectfully reaffirms the request set forth in its No-Action
Request, that the Staff of the Commission concur in the Company's determination
to omit the Proposal from the Company's Proxy Materials under Rule 14a-8(e) and
that the Staff indicate that it will not recommend enforcement action to the
Commission if the Company omits such Proposal. Finally, we vehemently reject Mr. Egan's statement that the Company has a
history of avoiding critical corporate governance issues by excluding
shareholders like the Proponents rather that addressing their concerns head on
by putting them to a shareholder vote. We object to this characterization. When
we received Mr. Egan's March 2003 letter, we wrote to him on April 14, 2003
inviting him to come and meet with our Board to talk about his specific ideas.
Eventually, Mr. Egan accepted our invitation, met with our Board, which engaged
in an open and frank discussion with Mr. Egan of his proposals. Because Mr. Egan
submitted his proposal under the bylaws in a timely manner with respect to
business to be brought before the 2004 Annual Meeting, his proposal will be
submitted to a vote at the 2004 Annual Meeting. However, because he missed the
Rule 14a-8 deadline for inclusion in our proxy statement, his proposal will not
be printed and included in the Company's proxy statement for such 2004 annual
meeting. Like all other public companies, our shareholder meetings are formal
affairs, governed by numerous federal and state rules and our bylaws. While we
might have sympathy for a shareholder who inadvertently misses a deadline, if we
made an exception for one, we would have to do the same for all. A public
company is entitled to plan its annual meeting and proxy affairs according to
the rules adopted by the SEC. That is what we have done. In accordance with Rule 14a-8(j), six copies of this letter, including Exhibits,
are enclosed, and a copy of this letter is being sent to the Proponents. Please
acknowledge receipt of the enclosed materials by date-stamping the enclosed
receipt copy of this letter and returning it in the enclosed self-addressed
stamped envelope. If you have any questions regarding this request or require
additional information, please contact the undersigned at telephone (713)
427-8814 or facsimile (713) 654-7722. Very truly yours,
EDGE PETROLEUM CORPORATION /s/
Robert C. Thomas
Vice President, General Counsel and
Corporate Secretary RCT/km
Enclosures cc: Marlin Capital Corp.
The Private Investment Fund LP
Mark G. Egan [INQUIRY LETTER]
January 15, 2004 Office of Chief Counsel
Division of Corporation Finance
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Letter dated January 13, 2004 from Edge Petroleum Corporation Requesting
No-Action Letter as to Exclusion from Proxy Materials of Shareholder Proposal
Submitted by Marlin Capital Corp., The Private Investment Fund LP and Mark G.
Egan Ladies and Gentlemen: Edge Petroleum Corporation, a Delaware corporation (the "Company"), submitted a
letter dated January 13, 2004 pursuant to Rule 14a-8(j) under the Securities
Exchange Act of 1934, as amended, to notify the Securities and Exchange
Commission (the "Commission") of the Company's intention to exclude a
shareholder proposal (the "Proposal") submitted by Marlin Capital Corp., The
Private Investment Fund LP and Mark G. Egan from its proxy statement and form of
proxy (together, the "Proxy Materials") for its 2004 annual meeting of
shareholders (the "No-Action Request"). A copy of the No-Action Request is
attached hereto as Exhibit A. The purpose of this letter is to correct a typographical error contained in the
first sentence of the second paragraph of the No-Action Request, which reads,
"The Company received the Proponents' letter dated January 7, 2004 by facsimile
on January 7, 2003 and by Federal Express on January 8, 2004." The Company
received the Proponents' letter by facsimile on January 7, 2004, and not on
January 7, 2003 as is indicated erroneously in the No-Action Request.
Accordingly, as discussed in more detail in the No-Action Request, the
submission was not timely under Rule 14a-8(e)(2). The Company asks that the
Division of Corporation Finance not recommend to the Commission that any
enforcement action be taken if the Company excludes the Proposal from its Proxy
Materials, for the reason that the Proposal was not timely submitted under Rule
14a-8(e). In accordance with Rule 14a-8(j), six copies of this letter, including Exhibit
A, are enclosed, and a copy of this letter is being sent to the Proponents.
Please acknowledge receipt of the enclosed materials by date-stamping the
enclosed receipt copy of this letter and returning it in the enclosed
self-addressed stamped envelope. If you have any questions regarding this
request or require additional information, please contact the undersigned at
telephone (713) 427-8814 or facsimile (713) 654-7722. January 15, 2004
Page Two Very truly yours,
EDGE PETROLEUM CORPORATION /s/
Robert C. Thomas
Vice President, General Counsel and Corporate
Secretary RCT/km
Enclosures cc: Marlin Capital Corp.
The Private Investment Fund LP
Mark G. Egan
[STAFF REPLY LETTER]
February 25, 2004 Response of the Office of Chief Counsel Division of Corporation Finance
Re: Edge Petroleum Corporation Incoming letter dated January 13, 2004
The proposals relate to the board of directors.
There appears to be some basis for your view that Edge Petroleum may exclude the
proposal under rule 14a-8(e)(2), because Edge Petroleum received it after the
deadline for submitting proposals. Accordingly, we will not recommend
enforcement action to the Commission if Edge Petroleum omits the proposal from
its proxy materials in reliance on rule 14a-8(e)(2). Sincerely,
/s/ Keir Devon Gumbs
Special Counsel
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