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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
SCHEDULE 14D-9
(Amendment No. 3)
(Rule 14d-101)
SOLICITATION/RECOMMENDATION STATEMENT
UNDER SECTION 14(d)(4) OF THE SECURITIES EXCHANGE ACT OF 1934
FX Energy, Inc.
(Name of Subject Company)
FX Energy, Inc.
(Name of Persons Filing Statement)
COMMON STOCK, $0.001 PAR VALUE
(Title of Class of Securities)
302695101
(CUSIP Number of Class of Securities)
David N. Pierce
Chief Executive Officer
FX Energy, Inc.
3006 Highland Drive, Suite 206
Salt Lake City, Utah 84106
Telephone (801) 486-5555
(Name, address and telephone number of person authorized to receive notices and communications
on behalf of the person filing statement)
with copy to:
Charles H. Still, Jr.
Gary W. Orloff
Bracewell & Giuliani LLP
711 Louisiana Street, Suite 2300
Houston, Texas 77002
(713) 223-2300

Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.
This Amendment No. 3 (this “ Amendment ”) amends and supplements the Solicitation/Recommendation Statement on Schedule 14D-9
originally filed by FX Energy, Inc., a Nevada corporation (the “ Company ”) with the Securities and Exchange Commission (“ SEC ”) on
October 27, 2015 (as amended and supplemented from time to time and together with exhibits, the “ Schedule 14D-9 ”). The Schedule 14D-9
relates to the tender offer (the “ Offer ”) by Kiwi Acquisition Corp., a Nevada corporation (“ Merger Sub ”) and a wholly-owned subsidiary of
ORLEN Upstream Sp. z o.o., a Polish private limited company (“ ORLEN Upstream ”), to purchase any (subject to the Minimum Tender
Condition) and all of the outstanding shares of the Company’s common stock, $0.001 par value (the “ Shares ”) at a price per Share of $1.15,
net to the seller thereof in cash, without interest, and less any applicable withholding taxes, on the terms and subject to the conditions set forth
in the Offer to Purchase, dated October 27, 2015 (as amended or supplemented from time to time, the “ Offer to Purchase ”), and the related
form of letter of transmittal (as amended or supplemented from time to time, the “ Letter of Transmittal ”). The Offer is described in a Tender
Offer Statement on Schedule TO, filed by Merger Sub and ORLEN Upstream with the SEC on October 27, 2015. The Offer to Purchase and
the Letter of Transmittal have been filed as exhibits (a)(1)(A) and (a)(1)(B) respectively to the Schedule 14D-9.
Except as otherwise provided in this Amendment, the information set forth in the Schedule 14D-9 remains unchanged. Capitalized terms
used but not otherwise defined herein have the meanings ascribed to such terms in the Schedule 14D-9.
Item 2.
Identity and Background of Filing Person .
Item 2 (“ Identity and Background of Filing Person ”) of the Schedule 14D-9 is hereby amended and supplemented to include the
following information:
“The Offer, which was previously scheduled to expire at 12:01 a.m., Eastern Time, on Wednesday, November 25, 2015, is being
extended in accordance with the Merger Agreement until 12:01 a.m., Eastern Time, on Saturday, December 5, 2015 (unless further
extended) to allow for limited expedited discovery and to accommodate the Court’s calendar in the putative class action lawsuit ( Richards
v. FX Energy, Inc. et al ., Case No. A-15-726409-C). The case was originally filed on October 19, 2015 on behalf of stockholders of the
Company in the Eighth Judicial District Court of Clark County, Nevada against the Company, each member of the Board, ORLEN
Upstream and Merger Sub (the “ Richards Lawsuit ”). Except for the extension of the Tender Offer, all other terms and conditions of the
Tender Offer remain unchanged.”
Item 8.
Additional Information.
Item 8 (“ Additional Information ”) of the Schedule 14D-9 is hereby amended and supplemented by adding the following paragraph after
the fifth paragraph in the subsection entitled “ Item 8. Additional Information—Certain Litigation ”:
“On November 11, 2015, an amendment to the putative class action lawsuit originally filed on October 27, 2015 ( Haworth v. FX
Energy, Inc. et al ., Case No. 150907699) on behalf of stockholders of the Company was filed in the Third Judicial District Court for Salt
Lake County, Utah against the Company, each member of the Board of directors, ORLEN Upstream and Merger Sub alleging, in addition
to the matters set forth in the original complaint, that the members of the Board breached their duty of candor by failing to disclose certain
information in the Statement. In that regard, the amended complaint alleges that this Statement fails to disclose the Company’s financial
forecasts prepared by Company management and relied upon by Evercore in rendering its fairness opinion and certain information related
to the valuation analyses performed by Evercore. The amended complaint also alleges that this Statement made material misstatements
and otherwise failed to disclose certain information about the sales process leading up to the proposed transaction with ORLEN Upstream.”
On November 16, 2015, a companion case was filed in Utah related to Haworth v. FX Energy, Inc. et al ., Case No. 150907699 (the “
First Haworth Lawsuit ”) which was described in Amendment No. 1 to the Schedule 14D-9. The companion case ( Haworth, et al. v. FX
Energy, Inc. et al. , Case No. 150908183 (the “ Second Haworth Lawsuit ”)) purportedly on behalf of shareholders of the Company was
filed in the Third Judicial District Court for Salt Lake County, Utah against the Company and each member of the Board alleging that the
Company’s bylaws require litigation of breach of fiduciary duty claims in Utah and seeking an anti-suit injunction to prevent the Company
and each member of the Board from litigating in Nevada on the claims asserted in the Nevada proceedings.
On November 17, 2015, the Company and Merger Sub appeared before Judge Todd Shaughnessy of the Third Judicial District Court
in Salt Lake County, Utah for a hearing on the Company’s motion to consolidate the First Haworth Lawsuit and Yip v. FX Energy, Inc. et
al ., Case No. 150907745 (the “ Yip Lawsuit ”) and to stay further proceedings in Utah. The Court announced it would consolidate the
First Haworth Lawsuit and the Yip Lawsuit. It also expressed its intention to assume jurisdiction over the Second Haworth Lawsuit based
on the agreement of the parties that the Court should do so. The Court also determined that no further proceedings would occur in Utah
until a ruling is made on the preliminary injunction in the Richards Lawsuit pending before Judge Elizabeth Gonzalez of the Eighth
Judicial District Court in Clark County, Nevada, on the understanding that counsel in the Utah actions would be allowed to participate in
the preliminary injunction proceedings in the Richards Lawsuit.
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Item 8 (“ Additional Information ”) of the Schedule 14D-9 is hereby further amended and supplemented by adding the following paragraph
after the first paragraph in the subsection entitled “ Item 8. Additional Information—Certain Litigation ” with the following:
“On November 17, 2015, the Company and Merger Sub appeared before Judge Elizabeth Gonzalez of the Eighth Judicial District
Court in Clark County, Nevada in response to the Richards Lawsuit. The Company, ORLEN Upstream and Merger Sub agreed to extend
the expiration of the Offer until 12:01 a.m., Eastern Time, on Saturday, December 5, 2015 (unless further extended) to allow for limited
expedited discovery and to accommodate the Court’s calendar. The Court set a hearing for Thursday, December 3, 2015 to rule on
plaintiffs’ motion for preliminary injunctive relief.”
Item 8 (“ Additional Information ”) of the Schedule 14D-9 is hereby further amended and supplemented by replacing and restating the
paragraph in the subsection entitled “ Item 8. Additional Information—Regulatory Approvals — Other Jurisdictions ” with the following:
“The Polish Act of February 16, 2007 on competition and consumer protection, as amended, requires ORLEN Upstream to file a
notification with the Polish Competition Authority and provides that the acquisition of Shares in the Offer shall not be consummated until
clearance by the Polish Competition Authority has been issued or a waiting period for the issuance of the clearance has expired. The
waiting period for the issuance of the clearance is one month following the submission of a complete filing and can be extended by four
months in complex matters. The waiting period can be further extended if the Polish Competition Authority requests additional
information for inclusion in the filing. In such case, the waiting period would be further extended by the period of time required by
ORLEN Upstream to furnish the Polish Competition Authority such additional information. ORLEN Upstream submitted the notification
in Poland on October 19, 2015, and the Company has been advised that ORLEN Upstream received a clearance decision from the Polish
Competition Authority on November 12, 2015.”
Item 9.
Exhibits.
Item 9 (“ Exhibits ”) of the Schedule 14D-9 is hereby amended and supplemented by adding the following exhibit:
Exhibit
Number
(a)(5)(G)
Description
Press Release issued by the Company, dated November 20, 2015, announcing the extension of the Offer.
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SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete
and correct.
FX Energy, Inc.
By:
Dated: November 20, 2015
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/s/ David N. Pierce
David N. Pierce
Chief Executive Officer
Exhibit (a)(5)(G)
FOR IMMEDIATE RELEASE
November 20, 2015
SCOTT J. DUNCAN
FX Energy, Inc.
3006 Highland Drive, Suite 206
Salt Lake City, Utah 84106
(801) 486-5555 Fax (801) 486-5575
www.fxenergy.com
FX Energy Announces Extension of Expiration of Tender Offer for its Common Stock by ORLEN Upstream
Salt Lake City, November 20, 2015, — FX Energy, Inc. (NASDAQ: FXEN) (the “ Company ”) today announced that Kiwi Acquisition Corp.
(“ Merger Sub ”), a wholly-owned subsidiary of ORLEN Upstream Sp. z o.o. (“ ORLEN Upstream ”), has extended the expiration of its
previously announced tender offer (the “ Tender Offer ”) for all outstanding shares of common stock of the Company. The Tender Offer is
being made pursuant to an Offer to Purchase dated October 27, 2015 (the “ Offer to Purchase ”) and under the terms and conditions of the
previously announced Agreement and Plan of Merger dated as of October 13, 2015 CET (October 12, 2015 MST) (the “ Merger Agreement ”)
among the Company, ORLEN Upstream and Merger Sub.
The Tender Offer, previously scheduled to expire at 12:01 a.m., Eastern Time, on Wednesday, November 25, 2015, will now expire at 12:01
a.m., Eastern Time, on Saturday, December 5, 2015 (unless further extended in accordance with the terms of the Merger Agreement). The
Tender Offer is being extended to allow for limited expedited discovery and to accommodate the Court’s calendar in a putative class action
lawsuit ( Richards v. FX Energy, Inc. et al .) originally filed on October 19, 2015 on behalf of stockholders of the Company in the Eighth
Judicial District Court of Clark County, Nevada against the Company, each member of the board of directors of the Company, ORLEN
Upstream and Merger Sub, as disclosed in the Solicitation/Recommendation Statement on Schedule 14D-9 (as amended, the “ Schedule 14D-9
”) relating to the Tender Offer filed by the Company with the Securities and Exchange Commission (the “ SEC ”). Except for the extension of
the Tender Offer, all other terms and conditions of the Tender Offer remain unchanged.
ABOUT FX ENERGY
FX Energy is an independent oil and gas exploration and production company with production in the US and Poland. The Company’s main
exploration and production activity is focused on Poland’s Permian Basin where the gas-bearing Rotliegend sandstone is a direct analog to the
Southern Gas Basin offshore England. The Company trades on the NASDAQ Global Select Market under the symbol FXEN.
Website www.fxenergy.com.
IMPORTANT ADDITIONAL INFORMATION AND WHERE YOU CAN FIND IT
This press release is neither an offer to purchase nor a solicitation of an offer to sell securities. Merger Sub and ORLEN Upstream have filed
with the SEC a Tender Offer Statement on
Schedule TO (as amended, the “ Schedule TO ”), containing the Offer to Purchase, the related form of Letter of Transmittal (the “ Letter of
Transmittal ”) and other related materials and have mailed the Offer to Purchase, Letter of Transmittal and related documents to holders of the
Company’s common stock. The Company also has filed the Schedule 14D-9 with the SEC. The Schedule TO, Offer to Purchase, Letter of
Transmittal, Schedule 14D-9 and related documents, as they may be amended or supplemented from time to time, contain important
information that should be read carefully before any decision is made with respect to the Tender Offer. These materials may be obtained for
free by directing a request by mail to Georgeson, Inc., 480 Washington Boulevard, 26th Floor Jersey City, NJ 07310 or by calling toll-free in
the United States (888) 663-7851. These materials also are available at no charge on the SEC’s web site at www.sec.gov.
FORWARD-LOOKING STATEMENTS
Statements in this press release regarding the proposed transaction, the expected timetable for completing the proposed transaction, benefits of
the proposed transaction, future financial and operating results and any other statements about the future expectations, beliefs, goals, plans or
prospects of FX Energy, Inc. constitute forward-looking statements within the meaning of the Private Securities Litigation Reform Act of
1995. Any statements that are not statements of historical fact (including statements containing the words “believes,” “plans,” “anticipates,”
“expects,” “estimates” and similar expressions) should also be considered to be forward-looking statements. There are a number of important
factors that could cause actual results or events to differ materially from those indicated by such forward-looking statements, including: the
ability to consummate the proposed transaction; the ability to obtain any remaining requisite regulatory and stockholder approval and the
satisfaction of the other conditions to the consummation of the proposed transaction; the potential impact of the announcement or
consummation of the proposed transaction on relationships, including with employees, suppliers, customers and competitors; and the other
factors and financial, operational and legal risks or uncertainties described in the Schedule 14D-9 and FX Energy Inc.’s Annual Report on
Form 10-K for the year ended December 31, 2014 and other reports filed with the SEC under the Securities Exchange Act of 1934. FX
Energy, Inc. disclaims any intention or obligation to update any forward-looking statements as a result of developments occurring after this
date except as required by law.