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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 1 to
SCHEDULE TO
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
PENNACO ENERGY, INC.
(Name of subject company (issuer))
MARATHON OIL ACQUISITION 1, LTD.,
a wholly owned subsidiary of
MARATHON OIL COMPANY,
a wholly owned subsidiary of
USX CORPORATION
(Names of filing persons (offerors))
COMMON STOCK, PAR VALUE $.001 PER SHARE
(INCLUDING THE ASSOCIATED COMMON SHARE PURCHASE RIGHTS)
(Title of class of securities)
708046107
(CUSIP number of class of securities)
WILLIAM F. SCHWIND, JR.
MARATHON OIL COMPANY
5555 SAN FELIPE ROAD
HOUSTON, TEXAS 77056-2723
(713) 629-6600
(Name, address and telephone number of person authorized
to receive notices and communications on behalf of filing persons)
Copy to:
R. JOEL SWANSON, JR.
BAKER BOTTS L.L.P.
3000 ONE SHELL PLAZA
910 LOUISIANA
HOUSTON, TEXAS 77002-4995
(713) 229-1234
[ ] Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer.
Check the appropriate boxes below to designate any transactions to which the
statement relates:
[X] third-party tender offer subject to Rule 14d-1.
[ ] issuer tender offer subject to Rule 13e-4.
[ ] going-private transaction subject to Rule 13e-3.
[ ] amendment to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment reporting the results
of the tender offer: [ ]
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Marathon Oil Acquisition 1, Ltd., a Delaware corporation (the "Purchaser"),
Marathon Oil Company, an Ohio corporation ("Marathon"), and USX Corporation, a
Delaware corporation ("USX"), hereby amend and supplement their Tender Offer
Statement on Schedule TO (the "Schedule TO") originally filed with the
Securities and Exchange Commission on January 8, 2001. The Schedule TO relates
to the offer by the Purchaser to purchase all the outstanding shares of common
stock par value $.001 per share ("Common Stock") of Pennaco Energy, Inc., a
Delaware corporation (the "Company"), together with the associated common share
purchase rights issued pursuant to the Rights Agreement dated as of February 24,
1999, as amended as of December 22, 2000, between the Company and the
Computershare Investor Services, L.L.C., as rights agent (collectively with the
Common Stock, the "Shares"), at $19 per Share, net to the seller in cash,
without interest thereon, on the terms and subject to the conditions set forth
in the Offer to Purchase dated January 8, 2001 (the "Offer to Purchase") and the
related Letter of Transmittal. Capitalized terms used and not otherwise defined
herein have the respective meanings assigned thereto in the Offer to Purchase.
ITEM 11. ADDITIONAL INFORMATION
Item 11 of the Schedule TO is hereby amended and supplemented to add the
following information:
On January 5, 2001, following the joint press release by Marathon and
the Company on December 22, 2000 announcing the Merger Agreement, two
purported stockholder class action complaints were filed against the
Company and its five directors in the District Court, City and County of
Denver, Colorado, entitled Harry Levy v. Pennaco Energy, Inc., et al., Case
Number 01-CV-0072, and Richard Stearns v. Pennaco Energy, Inc., et al.,
Case Number 01-CV-0073 (the "Colorado Complaints"). On January 9, 2001,
the day after the Purchaser commenced the Offer, two similar purported
stockholder class action lawsuit were filed against the Company, its five
directors and the Purchaser in the Delaware Court of Chancery entitled John
Grillo v. Pennaco Energy, Inc., et al., C.A. No. 18606 NC, and Thomas
Turberg v. Pennaco Energy, Inc. et. al., C.A. No. 18607 NC (the "Delaware
Complaints").
The allegations in the Colorado Complaints are identical, the only
difference being the purported class representative in each action. Both
Colorado Complaints allege the same grounds for relief, namely that the
defendants breached their fiduciary duties to the Company's stockholders or
are participating in a scheme to deprive the Company's stockholders of the
true value of their investments in the Company. They further allege that
the merger consideration to be paid to the Company's stockholders is
unconscionable, unfair and grossly inadequate.
The allegations in the Delaware Complaints are identical, the only
difference being the purported class representative in each action. Both
Delaware Complaints also allege that the Company's directors have breached
their fiduciary duties to the Company's stockholders. Specifically, the
Delaware Complaints allege that the documents disseminated by the
defendants in connection with the Offer contained material deficiencies in
disclosure and that, by disseminating those materials, the defendants
violated their fiduciary duties. They also allege that the Company's
directors breached their fiduciary duty of care and good faith by failing
to make efforts to inform themselves of the best value available for the
Company, and that the Purchaser participated in the breaches of fiduciary
duties by the Company's directors by pursuing the transaction in these
circumstances.
Each of these lawsuits includes a request for a declaration that the
action is properly maintainable as a class action, and each seeks relief
including awards of unspecified damages and fees of attorneys and experts.
Each lawsuit also seeks to enjoin the transactions contemplated by the
Merger Agreement, or to rescind the transactions in the event they are
consummated (or, in the case of the Delaware Complaints, to obtain
rescissory damages), and to require the Company's directors to place the
Company up for auction or otherwise employ a process to ensure that the
highest possible price is obtained for the Company. The Delaware Complaints
also seek an order compelling the defendants to supplement the documents
relating to the Offer to include all material information not currently
disclosed.
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The plaintiff in one of the Delaware lawsuits has filed a motion for
preliminary injunction and a motion for expedited proceedings in the
Delaware Court of Chancery. Each of the Company, its directors and the
Purchaser believes these lawsuits and the claims made therein are without
merit and intends to defend against these lawsuits vigorously. The
Purchaser, Marathon and USX have filed copies of each of the Colorado
Complaints, the Delaware Complaints and the motions in the Delaware lawsuit
referred to above as exhibits to this amendment to the Schedule TO.
ITEM 12. MATERIALS TO BE FILED AS EXHIBITS
Item 12 of the Schedule TO is hereby amended and supplemented to add the
following exhibits:
(a)(8) -- Complaint filed by Harry Levy in the District Court, City
and County of Denver, Colorado, on January 5, 2001
(a)(9) -- Complaint filed by Richard Stearns in the District Court,
City and County of Denver, Colorado, on January 5, 2001
(a)(10) -- Complaint filed by John Grillo in the Court of Chancery of
the State of Delaware in and for New Castle County on
January 9, 2001, together with related Motion for
Preliminary Injunction and Motion for Expedited
Proceedings filed on January 10, 2001
(a)(11) -- Complaint filed by Thomas Turberg in the Court of
Chancery of the State of Delaware in and for New Castle
County on January 9, 2001
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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.
Dated: January 12, 2001
MARATHON OIL ACQUISITION 1, LTD.
By: /s/ John T. Mills
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John T. Mills
Vice President
MARATHON OIL COMPANY
By: /s/ Clarence P. Cazalot, Jr.
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Clarence P. Cazalot, Jr.
President
USX CORPORATION
By: /s/ Clarence P. Cazalot, Jr.
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Clarence P. Cazalot, Jr.
Vice Chairman
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INDEX TO EXHIBITS
EXHIBIT
NUMBER DOCUMENT
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(a)(1)* -- Offer to Purchase dated January 8, 2001
(a)(2)* -- Form of Letter of Transmittal
(a)(3)* -- Form of Notice of Guaranteed Delivery
(a)(4)* -- Form of Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees
(a)(5)* -- Form of Letter to Clients for Use by Brokers, Dealers,
Commercial Banks, Trust Companies and Other Nominees
(a)(6)* -- Guidelines for Certification of Taxpayer Identification Number
on Substitute Form W-9
(a)(7)* -- Summary Advertisement as published in The Wall Street Journal
on January 8, 2001
(a)(8) -- Complaint filed by Harry Levy in the District Court, City and
County of Denver, Colorado, on January 5, 2001
(a)(9) -- Complaint filed by Richard Stearns in the District Court, City
and County of Denver, Colorado, on January 5, 2001
(a)(10) -- Complaint filed by John Grillo in the Court of Chancery of the
State of Delaware in and for New Castle County on January 9,
2001, together with related Motion for Preliminary Injunction
and Motion for Expedited Proceedings filed on January 10, 2001
(a)(11) -- Complaint filed by Thomas Turberg in the Court of Chancery
of the State of Delaware in and for New Castle County on
January 9, 2001
(d)* -- Agreement and Plan of Merger, dated as of December 22, 2000,
among Marathon Oil Acquisition 1, Ltd., Marathon Oil Company
and Pennaco Energy, Inc.
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* Previously filed.