==============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------
SCHEDULE 14D-1
(Amendment No. 11)
Tender Offer Statement
Pursuant to Section 14(d)(1) of the Securities Exchange Act of 1934
------------------------
Pennzoil Company
(Name of Subject Company)
------------------------
Union Pacific Resources Group Inc.
Resources Newco, Inc.
(Bidders)
------------------------
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)
------------------------
Joseph A. LaSala, Jr., Esq.
Vice President, General Counsel and Secretary
Union Pacific Resources Group Inc.
801 Cherry Street
Fort Worth, Texas 76102
Telephone: (817) 877-6000
(Name, Address and Telephone Number of Persons
Authorized to Receive Notices and Communications on Behalf of Bidders)
Copies To:
Howard L. Shecter, Esq. Paul T. Schnell, Esq.
Morgan, Lewis & Bockius LLP Skadden, Arps, Slate, Meagher & Flom LLP
101 Park Avenue 919 Third Avenue
New York, NY 10178-0060 New York, NY 10022-3897
Telephone: (212) 309-6384 Telephone: (212) 735-3000
==============================================================================
<PAGE>
This Amendment No. 11 amends the Tender Offer Statement on Schedule
14D-1 filed on June 23, 1997 (the 'Schedule 14D-1') by Union Pacific Resources
Group Inc., a Utah corporation ('UPR'), and Resources Newco, Inc., a Delaware
corporation and a wholly owned subsidiary of UPR (the 'Purchaser', and together
with UPR, the 'Bidders'), with respect to Purchaser's offer to purchase up to
25,094,200 shares of Common Stock, par value $0.83 1/3 per share (the 'Shares'),
of Pennzoil Company, a Delaware corporation ('Pennzoil'), or such greater number
of Shares as equals 50.1% of the Shares outstanding on a fully-diluted basis, in
each case together with the associated Preferred Stock Purchase Rights, upon the
terms and subject to the conditions set forth in the Offer to Purchase, dated
June 23, 1997 (the 'Offer to Purchase'), and the related Letter of Transmittal
(which, together with any amendments or supplements thereto, collectively
constitute the 'Offer'), which were filed as Exhibits (a)(1) and (a)(2) to the
Schedule 14D-1, respectively. Unless otherwise defined herein, all capitalized
terms used herein shall have the respective meanings given such terms in the
Offer to Purchase.
Item 10. Additional Information
(e)(3) On June 18, 1997 the United States District Court for the Northern
District of Texas, Fort Worth Division entered an order in Union
Pacific Resources Group Inc., et al., vs. Pennzoil Company denying
Pennzoil's amended motion to dismiss the action and partially granting
UPR's motion for preliminary injunction against Pennzoil enjoining
Pennzoil from, among other things, prosecuting or seeking any relief in
the matter of Pennzoil Company v. Union Pacific Resources Group Inc.
and Resources Newco, Inc. in the United States District Court for the
District of Delaware.
Item 11. Material to be Filed as Exhibits.
Item 11 is hereby amended to add the following:
(g)(8) 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).
<PAGE>
SIGNATURES
After due inquiry and to the best of our knowledge and belief, we
certify that the information set forth in this statement is true, complete and
correct.
UNION PACIFIC RESOURCES GROUP INC.
By: /s/ JOSEPH A. LASALA, JR.
------------------------------------------
Name: Joseph A. LaSala, Jr.
Title: Vice President, General Counsel
and Secretary
RESOURCES NEWCO, INC.
By: /s/ JOSEPH A. LASALA, JR.
------------------------------------------
Name: Joseph A. LaSala, Jr.
Title: Vice President, General Counsel
and Secretary
Dated: July 21, 1997
<PAGE>
EXHIBIT INDEX
Exhibit No. Description Page No.
- ---------- ----------- --------
(g)(8) 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).
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 Defendent'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>
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 Origninal or First Amended Complaint, this case is the
first-filed in which jurisdiction attached.(2) Consequently,
- ----------------
(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 additonal 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>
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;(1)
- --------------
(1) The Court's decision might be different, however, if the only claim asserted
in this action was Plaintiffs' claim for declaratory relief.
<PAGE>
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>
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>
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>
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>
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>
