<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14D-9
SOLICITATION/RECOMMENDATION STATEMENT
(AMENDMENT NO. 6)
Pursuant to Section 14(d)(4) of the
Securities Exchange Act of 1934
PENNZOIL COMPANY
(Name of Subject Company)
PENNZOIL COMPANY
(Name of Person(s) Filing Statement)
COMMON STOCK, PAR VALUE $0.83 1/3 PER SHARE
(including the associated Preferred Stock Purchase Rights)
(Title of Class of Securities)
709903 10 8
(CUSIP Number of Class of Securities)
LINDA F. CONDIT
CORPORATE SECRETARY
PENNZOIL COMPANY
PENNZOIL PLACE, P.O. BOX 2967
HOUSTON, TEXAS 77252-2967
(713) 546-8910
(Name, address and telephone number of person authorized
to receive notice and communications on behalf of the person(s) filing
statement)
Copies To:
<TABLE>
<S> <C>
Moulton Goodrum, Jr. Charles F. Richards, Jr.
Baker & Botts, L.L.P. Richards, Layton & Finger
One Shell Plaza One Rodney Square
Houston, Texas 77002-4995 P.O. Box 551
(713) 229-1234 Wilmington, Delaware 19899-0551
(302) 658-6541
</TABLE>
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This Amendment No. 6 (this "Amendment") amends and supplements the
Solicitation/ Recommendation Statement on Schedule 14D-9, as amended, originally
filed on July 1, 1997 by Pennzoil Company, a Delaware corporation (the
"Company"), relating to a tender offer commenced by Resources Newco, Inc., a
wholly owned subsidiary of Union Pacific Resources Group Inc. on June 23, 1997.
All capitalized terms used in this Amendment without definition have the
meanings attributed to them in the Schedule 14D-9.
The items of the Schedule 14D-9 set forth below are hereby amended by
adding the following:
ITEM 8. ADDITIONAL INFORMATION TO BE FURNISHED
On July 18, 1997, the United States District Court for the Northern
District of Texas entered an order in UPR and Newco's litigation against
Pennzoil denying Pennzoil's motion to dismiss the action and partially granting
UPR and Newco's motion for a preliminary injunction against Pennzoil enjoining
Pennzoil from, among other things, prosecuting or seeking any relief in
Pennzoil's litigation against UPR and Newco in the United States District Court
for the District of Delaware.
ITEM 9. MATERIAL TO BE FILED AS EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<C> <S>
38 Order Denying Amended Motion to Dismiss and Partially
Granting Motion for Preliminary Injunction (dated July 18,
1997, United States District Court for the Northern District
of Texas, Fort Worth Division).
39 Text of press release dated July 22, 1997 issued by the
Company.
</TABLE>
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After reasonable 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.
PENNZOIL COMPANY
Dated: July 22, 1997 By: /s/ James L. Pate
James L. Pate
Chairman of the Board, President
and Chief Executive Officer
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
<C> <S>
38 Order Denying Amended Motion to Dismiss and Partially
Granting Motion for Preliminary Injunction (dated
July 18, 1997, United States District Court for the
Northern District of Texas, Fort Worth Division).
39 Text of press release dated July 22, 1997 issued
by the Company.
</TABLE>
<PAGE> 1
EXHIBIT 38
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
UNION PACIFIC RESOURCES GROUP :
INC., ET AL. :
:
VS. : ACTION NO. 4:97-CV-509
:
PENNZOIL COMPANY :
ORDER DENYING AMENDED MOTION TO DISMISS AND
PARTIALLY GRANTING MOTION FOR PRELIMINARY INJUNCTION
(With Special Instructions to the Clerk of the Court)
-----------------------------------------------------
Pending before the Court is Defendant's Amended Motion to Dismiss, which
was filed in this cause on June 27, 1997. Defendant requests that this action be
dismissed in favor of a suit it filed against Plaintiffs in Delaware federal
district court. Plaintiffs filed a response in opposition to the motion on July
14, and Defendant filed a reply to the response on July 17. Also pending before
the Court is Plaintiffs' Motion for Preliminary Injunction, which was filed on
June 26. Plaintiffs' motion requests that this Court enjoin Defendant from
further prosecuting its Delaware suit, or any other suit regarding the subject
matter of Plaintiffs' complaint in this action. Defendant filed a response to
Plaintiffs' motion on July 16. After consideration of the submissions of the
parties and the arguments of counsel, the Court finds that Defendant's Amended
Motion to Dismiss should be denied, and that Plaintiffs' Motion for Preliminary
Injunction should be partially granted.
When parallel cases are filed in different courts regarding the same
subject matter, the "first-to-file rule"
<PAGE> 2
provides that the court with prior jurisdiction over the common subject matter
should generally take priority. See Genentech, Inc. v. Eli Lilly & Co., 998 F.2d
931, 937 (Fed. Cir. 1993), cert. denied sub nom. Regents of the Univ. of Cal. v.
Genentech, Inc., 510 U.S. 1140 (1994); West Gulf Maritime Ass'n v. ILA Deep Sea
Local No. 24, 751 F.2d 721, 730 (5th Cir. 1985) (quoting Mann Mfg., Inc. v.
Hortox, Inc., 439 F.2d 403, 408 (5th Cir. 1971)). Adherence to that rule would
compel the Court to deny Defendant's Motion to Dismiss because Plaintiffs filed
this suit two days prior to Defendant's suit in Delaware. But Defendant urges
that Plaintiffs' Original Complaint, requesting merely a declaratory judgment,
did not present a case or controversy and, consequently, that jurisdiction did
not first attach in this Court. The Court finds, however, that still prior to
Defendant's filing of its suit in Delaware, Plaintiffs filed their First Amended
Complaint with this Court adding claims for injunctive relief based upon
Defendant's alleged violations of federal securities laws.(1) As a result,
whether by virtue of the Original or First Amended Complaint, this case is the
first-filed in which jurisdiction attached.(2) Conse-
- ----------------
(1) Defendant admits its Delaware action was filed at 3:22 p.m. CST. See Def.'s
Am. Mot. to Dismiss at 4, n.2. The affidavits attached to Plaintiffs' response
to Defendant's Amended Motion to Dismiss demonstrates that Plaintiffs' First
Amended Complaint was filed with the clerk of this Court prior to 3:22 p.m. CST.
(2) The Court is not convinced, as urged by Defendant, that the additional
claims for injunctive relief asserted in Plaintiffs' First Amended Complaint are
moot. Furthermore, the Court is similarly unconvinced that for purposes of the
first-filed rule, the fact that the additional claims raised in the First
Amended Complaint may be moot is dispositive of whether jurisdiction
nevertheless attached upon the filing of the First Amended Complaint.
<PAGE> 3
quently, the first-to-file rule militates in favor of this Court's exercising
jurisdiction over this matter.
Defendant urges that compelling circumstances warrant deviating from the
first-to-file rule, specifically, that Plaintiffs engaged in impermissible forum
shopping by filing their allegedly anticipatory suit in this forum. Because of
Plaintiffs' allegedly blatant forum shopping, Defendant urges that their claims
be dismissed. As another federal district judge in Texas has pointed out,
however,
every litigant who files a lawsuit engages in forum shopping when he
chooses a place to file suit. The Court is concerned only with whether the
choice of forum is a proper one under the law, and not with the motives of
the party selecting the forum. The venue statutes are intentionally broad,
and litigants must often make an election from among several options as to
where to file a lawsuit. The litigant's right to choose a forum is well
established, and there are well-recognized test under 28 U.S.C. ss. 1404 to
determine whether a party has exceeded the bounds of fairness, convenience,
and judicial economy in the selection made.
Texas Instruments v. Micon Semiconductor, 815 F. Supp. 994, 996 (E.D. Tex.
1993); see also Fidelity Bank v. Mortgage Funding Corp. of Am., 855 F. Supp.
901, 903-04 (N.D.Tex. 1994) (finding that the declaratory judgment/first-to-file
plaintiff engaged in forum shopping, but refusing to dismiss action because the
plaintiff's chosen forum was the more convenient forum), aff'd, 91 F.3d 138
(1996). Furthermore, forum shopping does not appear to the Court to be the sole
reason that Plaintiffs filed suit in this forum;(3)
- --------------
(3) The Court's decision might be different, however, if the only claim asserted
in this action was Plaintiffs' claim for declaratory relief.
<PAGE> 4
indeed, this forum appears to the Court to be at least as reasonable a forum for
this litigation as Defendant's chosen forum.
Defendant also contends that the first-to-file rule should not be
followed where the suits at issue are filed within a matter of days of each
other. Defendant cites two cases from the Southern District of New York in
support of this proposition, see Def.'s Resp. to Pl.s' Mot. for Prelim. Inj. at
9 (citing Ontel Prods., Inc. v. Project Strategies Corp., 899 F. Supp. 1144,
1153 (S.D.N.Y. 1995), and Don King Prod., Inc. v. Douglas, 735 F. Supp. 522, 532
(S.D.N.Y. 1990)). Plaintiffs have not presented the Court with any Fifth Circuit
authority to the contrary. In the cases cited by Defendant, because the suits at
issue were filed within days of each other, the courts considered which forum
was more convenient for the witnesses and the parties rather than giving
dispositive weight to which case was filed first, and Defendant has urged this
Court to do the same.
Partially persuaded, the Court directed the parties to focus their
efforts at July 17's hearing on the issue of which forum was more convenient.(4)
After consideration of the arguments presented both at the hearing and in the
parties' written submissions, the
- ----------
(4) Plaintiffs' counsel noted at the hearing that Defendant had not actually
filled a motion requesting a transfer under 28 U.S.C. Section 1404(a).
Regardless of whether Defendant's motion, as supplemented by its reply to
Plaintiffs' response to the motion, can be viewed as requesting a Section
1404(a) transfer, the Court notes that it can determine whether to transfer an
action under Section 1404 without awaiting a specific motion for such a transfer
from Defendant. See Caldwell v. Palmetto State Savs. Bank of S. Carolina, 811
F.2d 916, 919 (5th Cir. 1987) ("Under the transfer statute, a district court may
transfer a case upon a motion or sua sponte, 28 U.S.C. Section 1404 and Section
1406. The district court has broad discretion in deciding whether to order a
transfer."); accord Mills v. Beech Aircraft Corp., Inc., 886 F.2d 758, 761 (5th
Cir. 1989).
<PAGE> 5
Court concludes that a transfer is not warranted. Defendant has the burden to
demonstrate that a transfer of venue is appropriate. See Time, Inc. v. Manning,
366 F.2d 690, 698 (5th Cir. 1966) ("At the very least, the plaintiff's privilege
of choosing venue places the burden on the defendant to demonstrate why the
forum should be changed."): Hupp v. Siroflex of Am., Inc., 848 F. Supp. 744, 749
(S.D. Tex. 1994) ("it is well settled that the party moving for a change of
venue pursuant to 28 U.S.C. Section 1404(a) has the burden of demonstrating why
the forum should be changed."). In determining whether to transfer, a court
should consider the following factors: (1) the plaintiff's choice of forum; (2)
the availability of witnesses and the convenience of the parties; (3) the cost
of obtaining the attendance of witnesses and other trial expenses; (4) the
location of counsel; (5) the location of books and records; (6) the place of the
alleged wrong; and (7) the possibility of delay and prejudice if transfer is
granted. Bevil v. Smit Americas, Inc., 883 F. Supp. 168, 170 (S.D. Tex. 1995);
Hupp, 848 F. Supp. at 749.
After careful consideration of all of these factors, the Court simply is
not persuaded that Delaware would be a more convenient forum for this dispute.
In making this decision, the Court is cognizant of the fact that Plaintiffs'
choice of forum is generally given deference, see Hupp, 848 F. Supp. at 751,
and though Defendant contends it is the "natural" plaintiff, in light of the
claims added by Plaintiffs' First Amended Complaint, the Court is unpersuaded.
Texas appears to be least slightly more convenient
<PAGE> 6
to the parties, given that their principal places of business are located within
Texas. Therefore, the majority of relevant documents appear to be located in
Texas. A majority of the witnesses are residents of Texas or on the boards of
directors of the parties. Costs do not appear to be a significant factor in
making the venue decision. Both parties have Texas and Delaware counsel, and the
lead counsel of record in this case are located in Texas. And finally, though
the average number of cases per judge in the Northern District of Texas is, as
Defendant represents, nearly 400, this judge has 270 civil cases pending--not a
significantly higher number than the 190-cases-per-judge average Defendant
attributes to the Delaware district court. See Def.'s Resp. to Pl.'s Mot. for
Prelim. Inj. at 10. Consequently, for all of the foregoing reasons, the Court
cannot say that Delaware, rather than Texas, is a more convenient forum for this
dispute. As a result, the Court finds that Defendants' Amended Motion to Dismiss
should be denied, and that a transfer of venue under 28 U.S.C. Section 1404(a)
is unwarranted.
Regarding Plaintiffs' Motion for Preliminary Injunction, the Court finds
that in light of its ruling on the Amended Motion to Dismiss, and after
consideration of all of the arguments presented by the parties in their oral
and written submissions, the Court finds that Plaintiffs' motion should be
partially granted. The Court finds that Defendant, its officers, directors,
agents, employees, and attorneys, and all those in active concert or
participation with them, should be enjoined from the following
<PAGE> 7
until the final decision on the merits of this action:
(1) Prosecuting or seeking any relief in Pennzoil Company v. Union Pacific
Resources Group, Inc. and Resources Newco, Inc., cause number 97-353,
pending in the United States District Court for the District of Delaware,
and
(2) Commencing or filing any lawsuit or litigation in any state or federal
court against Plaintiffs and/or their officers, agents, directors,
employees, or attorneys, or those in active concert or participation with
them, alleging claims that Plaintiffs' tender offer commenced on June 23,
1997 for Defendant's stock, or any actions taken in pursuit of such offer,
violated federal securities laws; or commencing or filing any lawsuit or
litigation that questions, based on applicable federal securities laws, the
legality, sufficiency, or validity of such offer.
It is, therefore, ORDERED that Defendant's June 27 Amended Motion to
Dismiss [document number 14-1] is hereby DENIED.
It is further ORDERED that Plaintiffs' June 26 Motion for Preliminary
Injunction [document number 7-2] is hereby PARTIALLY GRANTED, in that Defendant,
its officers, directors, agents, employees, and attorneys, and all those in
active concert or participation with them, are hereby enjoined from the
following until the final decision on the merits of this action;
(1) Prosecuting or seeking any relief in Pennzoil Company v. Union Pacific
Resources Group, Inc. and Resources Newco, Inc., cause number 97-353,
pending in the United States District Court for the District of Delaware,
and
(2) Commencing or filing any lawsuit or litigation in any state or federal
court against Plaintiffs and/or their officers, agents, directors,
employees, or attorneys, or those in active concert or participation with
them, alleging claims that Plaintiffs' tender offer commenced on June 23,
1997 for Defendant's stock, or any actions taken in pursuit of such offer,
violated federal securities laws; or commencing or filing any lawsuit or
litigation that questions, based on applicable federal securities laws, the
legality, sufficiency, or validity of such offer.
<PAGE> 8
The clerk of this Court is hereby DIRECTED to transmit a copy of this
order to all counsel of record via facsimile transmission as soon as possible
this same day.
The clerk is also DIRECTED to transmit a copy of this order via facsimile
transmission as soon as possible this same day, and to transmit a certified
copy of this order by mail, to the clerk of the United States District Court
for the District of Delaware, referencing Pennzoil Company v. Union Pacific
Resources Group, Inc. and Resources Newco, Inc., cause number 97-353.
SO ORDERED.
SIGNED July 18, 1997.
/s/ TERRY R. MEANS
--------------------------------
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
<PAGE> 1
Exhibit 39
[on Pennzoil letterhead]
FOR IMMEDIATE RELEASE Contact: Robert Harper
(713) 546-8536
PENNZOIL COMPANY REACTS TO UPR
ANNOUNCEMENT OF SHARES TENDERED
HOUSTON (July 22, 1997) -- James L. Pate, chairman and CEO of Pennzoil
Company (NYSE:PZL), said, "Given the two-tiered, coercive nature of the UPR
proposal, it is not surprising to us that 61.5 percent of our shareholders felt
they had no choice but to tender their shares in an attempt to protect
themselves from being forced into accepting all stock in the back-end of a
transaction that is highly uncertain and of questionable value.
"Because of UPR's prior market performance and the pricing collar
mechanism that limits the value of the second step transaction, the purported
value of any UPR stock to be delivered is subject to substantial downward
pressure and uncertainty, particularly when UPR stock trades below $25 per
share."
Pate added, "The position of our board of directors with respect to
the UPR proposal has been made very clear in our filings and in previous
communications to our shareholders. The board firmly believes that the UPR
proposal is inadequate and not in the best interests of Pennzoil and its
shareholders, and that pursuit of Pennzoil's strategic business plan will
produce greater long-term value than the UPR proposal.
"The board of directors of Pennzoil is strongly committed to staying
on the strategic course the company has set for itself to maximize long-term
value for Pennzoil shareholders, not the shareholders of UPR. We will continue
to strongly resist UPR's inadequate offer and its effort to intercept the
unrecognized emerging value of Pennzoil stock."
Pennzoil plans to release second quarter results on Monday, July 28.
Pate commented, "Our second quarter results will substantially exceed second
quarter 1996 results on a recurring basis and will demonstrate the continuing
success of Pennzoil's strategic plan. This will be our seventh consecutive
quarter of year-on-year improvement and provides us a strong basis to continue
to grow this company."
