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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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SCHEDULE TO/A
Tender Offer Statement Under Section 14(d)(1)
or Section 13(e)(1) of the Securities Exchange Act of 1934
(Amendment No.1)
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ENERGY PARTNERS, LTD.
(Name of Subject Company (Issuer))
ATS INC.
an indirect wholly-owned subsidiary of
WOODSIDE PETROLEUM, LTD.
(Name of Filing Persons (Offeror))
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COMMON STOCK, PAR VALUE $0.01 PER SHARE
(Title of Class of Securities)
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29270U105
(CUSIP Number of Class of Securities)
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Jeff Soine
ATS Inc.
71683 Riverside Avenue
Covington, Louisiana 70433
Telephone: (985) 249-5300
(Name, address and telephone number of
person authorized to receive notices
and communications on behalf of filing persons)
With Copy to:
Lou R. Kling, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036
Telephone: (212) 735-3000
CALCULATION OF FILING FEE
Transaction Valuation*: $ 985,093,611.00 Amount of Filing Fee**: $ 105,405.02
* Estimated for purposes of calculating the filing fee only. This
calculation assumes the purchase of 42,830,157 shares of common stock, par
value $0.01 per share ("Shares"), of Energy Partners, Ltd. at the tender
offer price of $23.00 per share of common stock. Based upon information
contained in Energy Partners, Ltd.'s Quarterly Report on Form 10-Q filed
with the SEC on August 9, 2006, there were 38,396,001 Shares outstanding
as of August 7, 2006 and a maximum of 6,153,156 Shares issuable pursuant
to existing warrants, stock options, performance share awards and other
share awards, of which 1,719,000 Shares are owned by Woodside Petroleum
Ltd. and its subsidiaries (and are not included for purposes of this
calculation).
** The amount of filing fee is calculated in accordance with Rule 0-11(a)(2)
under the Securities Exchange Act of 1934, as amended, and Fee Rate
Advisory #5 For Fiscal Year 2006 issued by the Securities and Exchange
Commission on November 23, 2005. Such fee equals $107.00 per $1,000,000 of
the transaction value.
|X| Check the box if any part of the fee is offset as provided by Rule
0-11(a)(2) and identify the filing with which the offsetting fee was
previously paid. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
Amount previously paid: $105,405.02 Form or registration no.: Schedule TO
Filing Party: ATS Inc. Date Filed: August 31, 2006
|_| 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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This Amendment No. 1 to the Tender Offer Statement on Schedule TO
(this "Amended Schedule TO") amends and supplements the Tender Offer Statement
on Schedule TO originally filed with the Securities Exchange Commission on
August 31, 2006 (the "Schedule TO") by ATS Inc., a Delaware corporation (the
"Purchaser") and an indirect wholly owned subsidiary of Woodside Petroleum
Ltd., a company organized under the laws of Victoria, Australia ("Parent"),
pursuant to Rule 14d-1 under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), in connection with Purchaser's offer to purchase all of
the issued and outstanding shares of common stock, par value $0.01 per share
(the "Shares"), of Energy Partners, Ltd., a Delaware corporation (the
"Company") for $23.00 per Share, net to the seller in cash (less applicable
withholding taxes and without interest), subject to increase by $0.50 or $1.00
per share to a total of $23.50 or $24.00 net per Share in cash depending on the
resolution of certain litigation described in Purchaser's Offer to Purchase,
dated August 31, 2006 (the "Offer to Purchase"). The terms and conditions of
the offer are described in the Offer to Purchase and the accompanying Letter of
Transmittal (the "Letter of Transmittal") and the instructions thereto (which,
as they may be amended or supplemented from time to time, together constitute
the "Offer").
The information in the Offer to Purchase and the related Letter of
Transmittal is incorporated in this Amended Schedule TO by reference to all of
the applicable items in the Schedule TO, except that such information is hereby
amended and supplemented to the extent specifically provided herein.
ITEM 3. IDENTITY AND BACKGROUND OF FILING PERSON
Item 3 of the Schedule TO, which incorporates by reference the information
contained in the Offer to Purchase, is hereby amended and supplemented as
follows:
The Offer to Purchase, Schedule I Information Concerning The Directors
And Executive Officers Of Purchaser And Parent--2. Directors and Executive
Officers of Parent, is hereby amended by adding the following:
Present Principal Occupation or
Employment; Material Positions
Name, Citizenship Held During the Past Five Years
and Current Business Address and Business Address Thereof
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Dr. Pierre Jean-Marie Henri Jungels............... Dr. Jungels has been a Non-Executive Director of Woodside
Citizenship: Belgium Petroleum Ltd. and Woodside Energy Ltd. since December 2002.
Dr. Jungels is also a Director of Imperial Tobacco Group
Plc, a position he has held since 2002, Chairman of Offshore
Hydrocarbon Mapping Plc, a position he has held since 2004,
Chairman of Rockhopper Exploration Plc, a position he has
held since February 2005, Chairman of Oxford Catalyst Ltd, a
position he has held since March 2006, and Director of Baker
Hughes Inc., a position he has held since April 2006. Prior
to this, Dr. Jungels was a Director of Offshore Logistics
Plc (Bristow Group) from September 2002 to August 2006,
President of Institute of Petroleum from June 2002 to
December 2003, and Chief Executive Officer of Enterprise Oil
Plc from October 1996 to October 2001.
David Ian McEvoy.................................. Mr. McEvoy has been a Non-Executive Director of Woodside
Citizenship: Australian Petroleum Ltd. and Woodside Energy Ltd. since September 2005.
Mr. McEvoy is also a Non- Executive Director of Innamincka
Petroleum Limited, a position he has held since September
2003, a Non- Executive Director of Po Valley Energy Limited,
a position he has held since September 2003, and a
Non-Executive Director of Australian Worldwide Exploration
Ltd, a position he has held since June 2006. Prior to this,
Mr. McEvoy was Vice President of ExxonMobil Exploration
Company from 1992 to May 2002.
Russell Ronald Caplan............................. Mr. Caplan has been a Non-Executive Director of Woodside
Citizenship: Australian Petroleum Ltd. and Woodside Energy Ltd. since February 2006.
Mr. Caplan is also Chairman of Shell Australia Ltd., a
position he has held since February 2006. Mr. Caplan is also
Chairman of Australian Institute of Petroleum, a position he
has held since March 2006. Prior to that, Mr. Caplan was
Senior Vice President Globalisation of Shell International
Petroleum Co. from August 2004 to February 2006, Vice
President Sales & Marketing of Shell Oil Products U.S. from
September 2001 to March 2004, and Executive Vice President
Global Marketing of Shell International Oil Products from
January 1999 to September 2001.
ITEM 11. ADDITIONAL INFORMATION
Item 11 of the Schedule TO, which incorporates by reference the information
contained in the Offer to Purchase, is hereby amended and supplemented as
follows:
The Offer to Purchase, Section 15. Certain Legal Matters and
Regulatory Approvals--Delaware Litigation, is hereby amended by adding the
following after the last paragraph:
On September 7, 2006, Purchaser filed a motion for summary judgment on
one of the claims in its Complaint filed in the Delaware Chancery Court on
August 28, 2006. Purchaser sought a judgment as a matter of law that Section 2.9
of the Company's bylaws, which purports to impose a supermajority requirement
on stockholder action taken by written consent, is invalid under Section 228 of
the General Corporation Law of the State of Delaware and Delaware case law.
On September 11, 2006, Purchaser amended the complaint it had filed in
the Delaware Chancery Court on August 28, 2006. Purchaser added a claim
challenging Section 6.2(e) of the Merger Agreement. Purchaser believes that, as
interpreted by Stone Energy, this "non-impairment" provision is unlawful and
invalid under Delaware law because it prevents the Company board of directors
from exercising its fiduciary duties by, among other things, informing itself
about third-party superior proposals, such as the Purchaser's Tender Offer.
On September 11, 2006, Purchaser also filed a motion to consolidate
its action with the action brought by the Company against Stone Energy in the
Delaware Chancery Court on September 7, 2006, which also challenges Stone
Energy's construction of Section 6.2(e) of the Merger Agreement.
ITEM 12. EXHIBITS.
Item 12 of the Schedule TO is amended and supplemented by adding the following:
(a)(5)(F) Amended Complaint for Injunctive and Declaratory Relief
filed in the Court of Chancery in the State of Delaware in
and for New Castle County, captioned ATS, Inc., a Delaware
corporation, v. Richard A. Bachmann, John C. Bumgarner, Jr.,
Jerry D. Carlisle, Harold D. Carter, Enoch L. Dawkins,
Norman C. Francis, Robert D. Gershen, Phillip A. Gobe,
William R. Herrin, Jr., William O. Hiltz, John G. Phillips,
Energy Partners, Ltd., a Delaware corporation, and Stone
Energy Corporation, a Delaware corporation, Civil Action No.
2374-N, filed September 11, 2006
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Schedule TO is true, complete
and correct.
ATS INC.
By: /s/ Jeff Soine
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Name: Jeff Soine
Title: Secretary
Date: September 11, 2006
EXHIBIT INDEX
EXHIBIT NO. DOCUMENT
(a)(5)(F) Amended Complaint for Injunctive and Declaratory Relief
filed in the Court of Chancery in the State of Delaware in
and for New Castle County, captioned ATS, Inc., a Delaware
corporation, v. Richard A. Bachmann, John C. Bumgarner, Jr.,
Jerry D. Carlisle, Harold D. Carter, Enoch L. Dawkins,
Norman C. Francis, Robert D. Gershen, Phillip A. Gobe,
William R. Herrin, Jr., William O. Hiltz, John G. Phillips,
Energy Partners, Ltd., a Delaware corporation, and Stone
Energy Corporation, a Delaware corporation, Civil Action No.
2374-N, filed September 11, 2006