-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Uzbn768wx0MxSGWQiGKousXXYHKcdcMnpak/P2CeVRLuvxHH8pvce08pzvRLSRag iJ5u9ON1vFEHp/H1exMgGA== 0000950129-01-001376.txt : 20010313 0000950129-01-001376.hdr.sgml : 20010313 ACCESSION NUMBER: 0000950129-01-001376 CONFORMED SUBMISSION TYPE: SC TO-T PUBLIC DOCUMENT COUNT: 12 FILED AS OF DATE: 20010312 GROUP MEMBERS: SHELL OIL CO GROUP MEMBERS: SRM ACQUISITION COMPANY SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: BARRETT RESOURCES CORP CENTRAL INDEX KEY: 0000351993 STANDARD INDUSTRIAL CLASSIFICATION: CRUDE PETROLEUM & NATURAL GAS [1311] IRS NUMBER: 840832476 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC TO-T SEC ACT: SEC FILE NUMBER: 005-33291 FILM NUMBER: 1566231 BUSINESS ADDRESS: STREET 1: 1515 ARAPAHOE ST STREET 2: TOWER 3 STE 1000 CITY: DENVER STATE: CO ZIP: 80202 BUSINESS PHONE: 3032973900 MAIL ADDRESS: STREET 1: 1515 ARAPAHOE ST STREET 2: TOWER 3 STE 1000 CITY: DENVER STATE: CO ZIP: 80202 FORMER COMPANY: FORMER CONFORMED NAME: AIMEXCO INC DATE OF NAME CHANGE: 19840215 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: SHELL OIL CO CENTRAL INDEX KEY: 0000089629 STANDARD INDUSTRIAL CLASSIFICATION: PETROLEUM REFINING [2911] IRS NUMBER: 131299890 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC TO-T BUSINESS ADDRESS: STREET 1: ONE SHELL PLZ STREET 2: 910 LOUISIANA CITY: HOUSTON STATE: TX ZIP: 77002 BUSINESS PHONE: 7132416161 SC TO-T 1 h84893tscto-t.txt SRM ACQUISITION COMPANY FOR BARRETT RESOURCES CORP 1 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE TO TENDER OFFER STATEMENT under Section 14(d)(1) or 13(e)(1) of the Securities Exchange Act of 1934 BARRETT RESOURCES CORPORATION (Name of Subject Company (issuer)) SRM ACQUISITION COMPANY SHELL OIL COMPANY (Names of Filing Persons (offerors)) COMMON STOCK, PAR VALUE $.01 PER SHARE (Including the Associated Preferred Stock Purchase Rights) (Title of Class of Securities) 068480201 (CUSIP Number of Class of Securities) Lori M. Muratta Senior Counsel Shell Oil Company One Shell Plaza 910 Louisiana Houston, Texas 77002 (713) 241-6161 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Filing Persons) Copy to: Joseph A. Cialone, II Baker Botts L.L.P. One Shell Plaza 910 Louisiana Houston, Texas 77002-4995 (713) 229-1234 CALCULATION OF FILING FEE
TRANSACTION VALUATION* AMOUNT OF FILING FEE** ---------------------- ---------------------- $1,967,152,550.00 $393,430.51
- --------------- * For purposes of calculating amount of filing fee only. Based on the offer to purchase 35,766,410 shares of common stock, par value $.01 per share, of Barrett Resources Corporation, including the related preferred stock purchase rights, at a purchase price of $55.00 per share net to the seller in cash, without interest. Such number of shares represents the total of 33,055,586 shares outstanding as of November 8, 2000 (as reported in Barrett Resources Corporation's Quarterly Report on Form 10-Q for the quarter ended September 30, 2000), and the 2,710,824 shares issuable on exercise of options to purchase shares outstanding as of December 31, 1999 (as reported in Barrett Resources Corporation's Annual Report on Form 10-K for the year ended December 31, 1999). ** The amount of the filing fee calculated in accordance with Regulation 240.0-11 of the Securities Exchange Act of 1934, as amended, equals 1/50th of one percent of the value of the transaction. [ ] 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 registration statement number, or the Form or Schedule and the date of its filing. Amount Previously Paid: Filing Party: Form or Registration No.: Date Filed: [ ] 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: [ ] - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 2 This Tender Offer Statement on Schedule TO (the "Schedule TO") relates to the offer by SRM Acquisition Company (the "Purchaser"), a Delaware corporation and an indirect wholly owned subsidiary of Shell Oil Company, a Delaware corporation ("Shell"), to purchase (1) all outstanding shares of common stock, par value $.01 per share (the "shares"), of Barrett Resources Corporation (the "Company") and (2) the associated preferred stock purchase rights outstanding under the Rights Agreement dated as of August 5, 1997, as amended, between the Company and BankBoston, N.A., as Rights Agent (the "Rights"), that are not owned by the Purchaser, Shell or Shell's other direct or indirect subsidiaries, at a purchase price of $55.00 per share, net to the seller in cash, without interest thereon, upon the terms and subject to the conditions set forth in the Offer to Purchase dated March 12, 2001 (the "Offer to Purchase") and in the related Letter of Transmittal (which, together with any amendments or supplements thereto, collectively constitute the "Offer") that are annexed to and filed with this Schedule TO as Exhibits (a)(1)(A) and (a)(1)(B), respectively. This Schedule TO is being filed on behalf of the Purchaser and Shell. All information set forth in the Offer to Purchase filed as Exhibit (a)(1)(A) to this Schedule TO is incorporated by reference in answer to Items 1 through 11 in this Schedule TO, and is supplemented by the information specifically provided herein. ITEM 3. IDENTITY AND BACKGROUND OF FILING PERSON. None of Shell, the Purchaser or, to the best knowledge of such corporations, any of the persons listed on Schedule I to the Offer to Purchase has during the last five years (i) been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) been a party to any judicial or administrative proceeding (except for matters that were dismissed without sanction or settlement) that resulted in a judgment, decree or final order enjoining the person from future violations of, or prohibiting activities subject to, federal or state securities laws or a finding of any violation of such laws. ITEM 12. MATERIALS TO BE FILED AS EXHIBITS. (a)(1)(A) -- Offer to Purchase, dated March 12, 2001 (a)(1)(B) -- Letter of Transmittal (a)(1)(C) -- Notice of Guaranteed Delivery (a)(1)(D) -- Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees (a)(1)(E) -- Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees (a)(1)(F) -- Guidelines for Certification of Taxpayer Identification Number of Substitute Form W-9 (a)(1)(G) -- Press release issued by Shell Oil Company on March 12, 2001 (a)(1)(I) -- Summary Advertisement, published March 12, 2001 (a)(1)(J) -- Preliminary Consent Statement, filed March 12, 2001 (a)(1)(K) -- Complaint filed in the United States District Court for the District of Delaware on March 12, 2001 (a)(1)(L) -- Amended Complaint filed in the Chancery Court, New Castle County, Delaware on March 12, 2001 (b) -- None (c) -- None (d) -- None (e) -- None (f) -- None (g) -- None (h) -- None
2 3 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: March 12, 2001 SRM ACQUISITION COMPANY By: /s/ WALTER VAN DE VIJVER ---------------------------------- Walter van de Vijver President and Chief Executive Officer SHELL OIL COMPANY By: Shell Exploration & Production Company, as agent By: /s/ WALTER VAN DE VIJVER ---------------------------------- Walter van de Vijver President and Chief Executive Officer 3 4 INDEX OF EXHIBITS
EXHIBIT NO. DOCUMENT ----------- -------- (a)(1)(A) -- Offer to Purchase, dated March 12, 2001 (a)(1)(B) -- Letter of Transmittal (a)(1)(C) -- Notice of Guaranteed Delivery (a)(1)(D) -- Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees (a)(1)(E) -- Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees (a)(1)(F) -- Guidelines for Certification of Taxpayer Identification Number of Substitute Form W-9 (a)(1)(G) -- Press release issued by Shell Oil Company on March 12, 2001 (a)(1)(I) -- Summary Advertisement, published March 12, 2001 (a)(1)(J) -- Preliminary Consent Statement, filed March 12, 2001 (a)(1)(K) -- Complaint filed in the United States District Court for the District of Delaware on March 12, 2001 (a)(1)(L) -- Amended Complaint filed in the Chancery Court, New Castle County, Delaware on March 12, 2001 (b) -- None (c) -- None (d) -- None (e) -- None (f) -- None (g) -- None (h) -- None
EX-99.A1.A 2 h84893tex99-a1_a.txt OFFER TO PURCHASE DATED 3/12/2001 1 EXHIBIT (a)(1)(A) Offer to Purchase for Cash All Outstanding Shares of Common Stock (including the associated Preferred Stock Purchase Rights) of BARRETT RESOURCES CORPORATION at $55.00 Net Per Share by SRM ACQUISITION COMPANY, an indirect wholly owned subsidiary of SHELL OIL COMPANY THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON APRIL 6, 2001, UNLESS THE OFFER IS EXTENDED. THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (1) THERE BEING VALIDLY TENDERED AND NOT PROPERLY WITHDRAWN PRIOR TO THE EXPIRATION DATE THAT NUMBER OF SHARES THAT, TOGETHER WITH ANY SHARES OWNED BY THE PURCHASER, SHELL OR SHELL'S OTHER DIRECT OR INDIRECT SUBSIDIARIES, WOULD REPRESENT AT LEAST A MAJORITY OF ALL OUTSTANDING SHARES ON A FULLY DILUTED BASIS ON THE DATE OF PURCHASE (THE "MINIMUM TENDER CONDITION"), (2) THE COMPANY'S PREFERRED STOCK PURCHASE RIGHTS HAVING BEEN REDEEMED BY THE BOARD OF DIRECTORS OF THE COMPANY, OR THE PURCHASER BEING SATISFIED, IN ITS SOLE DISCRETION, THAT THE RIGHTS HAVE BEEN INVALIDATED OR ARE OTHERWISE INAPPLICABLE TO THE OFFER AND THE PROPOSED MERGER (AS DEFINED HEREIN) (THE "RIGHTS CONDITION"), (3) THE ACQUISITION OF SHARES PURSUANT TO THE OFFER AND THE PROPOSED MERGER HAVING BEEN APPROVED PURSUANT TO SECTION 203 OF THE DELAWARE GENERAL CORPORATION LAW ("SECTION 203"), OR THE PURCHASER BEING SATISFIED, IN ITS SOLE DISCRETION, THAT THE PROVISIONS OF SECTION 203 ARE OTHERWISE INAPPLICABLE TO THE ACQUISITION OF SHARES PURSUANT TO THE OFFER AND THE PROPOSED MERGER (THE "BUSINESS COMBINATION CONDITION"), (4) THE PURCHASER BEING SATISFIED, IN ITS SOLE DISCRETION, THAT THE PROVISIONS OF ARTICLE IV OF THE COMPANY'S BYLAWS ARE INAPPLICABLE TO THE ACQUISITION OF SHARES PURSUANT TO THE OFFER AND THE PROPOSED MERGER (THE "BYLAWS CONDITION"), AND (5) THE WAITING PERIODS UNDER THE HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT OF 1976 (THE "HSR ACT") APPLICABLE TO THE PURCHASE OF SHARES PURSUANT TO THE OFFER HAVING EXPIRED OR BEEN TERMINATED (THE "HSR CONDITION"). SEE SECTIONS 14 AND 15. --------------------- IMPORTANT Any stockholder desiring to tender all or any portion of such stockholder's shares (and the associated preferred stock purchase rights) should either (i) complete and sign the letter of transmittal (or a facsimile thereof) in accordance with the instructions in the letter of transmittal, have such stockholder's signature thereon guaranteed if required by Instruction 1 to the letter of transmittal, mail or deliver the letter of transmittal (or such facsimile), or, in the case of a book-entry transfer effected pursuant to the procedure set forth in section 2, an agent's message (as defined therein), and any other required documents to the depositary and either deliver the certificates for such shares and, if separate, the certificate(s) representing the associated preferred stock purchase rights to the depositary along with the letter of transmittal (or facsimile) or deliver such shares (and associated preferred stock purchase rights, if applicable) pursuant to the procedure for book-entry transfer set forth in section 2 or (ii) request such stockholder's broker, dealer, bank, trust company or other nominee to effect the transaction for such stockholder. A stockholder having shares and, if applicable, associated preferred stock purchase rights registered in the name of a broker, dealer, bank, trust company or other nominee must contact such broker, dealer, bank, trust company or other nominee if such stockholder desires to tender such shares and, if applicable, associated preferred stock purchase rights. Unless the Rights Condition (as defined herein) is satisfied, stockholders will be required to tender one associated preferred stock purchase right for each share tendered in order to effect a valid tender of shares. If a stockholder desires to tender shares and associated preferred stock purchase rights and such stockholder's certificates for shares (or associated preferred stock purchase rights, if applicable) are not immediately available or the procedure for book-entry transfer cannot be completed on a timely basis, or time will not permit all required documents to reach the depositary prior to the expiration date (as defined herein), such stockholder's tender may be effected by following the procedure for guaranteed delivery set forth in section 2. Questions and requests for assistance or for additional copies of this offer to purchase, the letter of transmittal and the notice of guaranteed delivery may be directed to Morrow & Co., Inc. (the "information agent") or to Lehman Brothers Inc. (the "dealer manager") at their respective addresses and telephone numbers set forth on the back cover of this offer to purchase. --------------------- The Dealer Manager for the Offer is: LEHMAN BROTHERS March 12, 2001 2 TABLE OF CONTENTS
PAGE ---- SECTION 1. TERMS OF THE OFFER.......................................... 9 SECTION 2. PROCEDURE FOR TENDERING SHARES AND RIGHTS................... 10 SECTION 3. WITHDRAWAL RIGHTS........................................... 14 SECTION 4. ACCEPTANCE FOR PAYMENT AND PAYMENT.......................... 14 SECTION 5. CERTAIN U.S. FEDERAL INCOME TAX CONSEQUENCES................ 15 SECTION 6. PRICE RANGE OF THE SHARES; DIVIDENDS ON THE SHARES.......... 16 SECTION 7. EFFECT OF THE OFFER ON THE MARKET FOR THE SHARES; SHARE QUOTATION; EXCHANGE ACT REGISTRATION; MARGIN REGULATIONS.... 17 SECTION 8. CERTAIN INFORMATION CONCERNING THE COMPANY.................. 18 SECTION 9. CERTAIN INFORMATION CONCERNING THE PURCHASER AND ITS AFFILIATES.................................................. 22 SECTION 10. SOURCE AND AMOUNT OF FUNDS.................................. 23 SECTION 11. CONTACTS AND TRANSACTIONS WITH THE COMPANY; BACKGROUND OF THE OFFER................................................... 23 SECTION 12. PURPOSE OF THE OFFER; PLANS FOR THE COMPANY................. 28 SECTION 13. DIVIDENDS AND DISTRIBUTIONS................................. 30 SECTION 14. CERTAIN CONDITIONS OF THE OFFER............................. 31 SECTION 15. CERTAIN LEGAL MATTERS....................................... 34 SECTION 16. FEES AND EXPENSES........................................... 36 SECTION 17. MISCELLANEOUS............................................... 36 SCHEDULE I -- DIRECTORS AND EXECUTIVE OFFICERS OF SHELL, THE PURCHASER, SHELL PETROLEUM INC., ROYAL DUTCH PETROLEUM COMPANY AND THE "SHELL" TRANSPORT AND TRADING COMPANY, P.L.C. ............. S-1 SCHEDULE II -- SHELL OIL COMPANY'S INTERESTS IN THE COMPANY'S SHARES; RECENT TRANSACTIONS IN THE COMPANY'S SHARES................ S-10
3 SUMMARY TERM SHEET SRM Acquisition Company, to which this offer to purchase refers as the "Purchaser," is offering to purchase all outstanding shares of common stock of Barrett Resources Corporation, to which this offer to purchase refers as the "Company," for $55.00 per share in cash. The following are some questions you, as a stockholder of the Company, may have and answers to those questions. We urge you to read the remainder of this offer to purchase and the letter of transmittal carefully because the information in this summary is not complete and additional important information is contained in the remainder of this offer to purchase and the letter of transmittal. WHO IS OFFERING TO BUY MY SHARES? The Purchaser, SRM Acquisition Company, is a Delaware corporation formed to make this tender offer. It is an indirect wholly owned subsidiary of Shell Oil Company, a Delaware corporation, to which this offer to purchase refers as "Shell." See section 9 of this offer to purchase -- "Certain Information Concerning the Purchaser and its Affiliates." WHAT SHARES ARE YOU SEEKING IN THIS OFFER? The Purchaser is offering to purchase all the outstanding shares of common stock of the Company that Shell or its subsidiaries do not already own. The Purchaser, Shell and SWEPI LP, an indirect wholly owned subsidiary of Shell, together own 107,100 shares, or less than 1 percent of the outstanding shares. See "Introduction" and section 1 of this offer to purchase -- "Terms of the Offer." WHAT ARE THE "ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS"? The associated preferred stock purchase rights were issued to all stockholders of the Company, but currently are not represented by separate certificates. Instead, these rights are represented by the certificates for your shares. Unless the rights are distributed to stockholders, a tender of your shares will include a tender of the associated rights. If the rights are distributed, a holder will need to tender one right with each share tendered. We will not pay any additional consideration for the tender of a right. WHY ARE YOU MAKING THIS OFFER? We are making the offer because Shell wants to acquire control of, and the entire equity interest in, the Company. If the offer is consummated, we intend to effect a follow-on merger with the Company in which the Company will become an indirect wholly owned subsidiary of Shell and all shares of the Company that are not purchased in the offer will be exchanged for an amount in cash per share equal to the same price per share we pay under the offer. We sometimes refer to this offer together with the proposed merger as "the transaction." WHAT ARE THE MOST IMPORTANT CONDITIONS TO THE OFFER? The following are the most important conditions to the offer: - The Company stockholders must validly tender and not withdraw before expiration of the offer the number of shares of common stock of the Company (including the associated rights) that, when added to the number of shares then owned by Shell or Shell's other direct and indirect subsidiaries, would represent at least a majority of the outstanding shares on a fully diluted basis; - The Company's board of directors must redeem the rights, or we, in our sole discretion, must be satisfied that the rights have been invalidated or are otherwise inapplicable to the transaction; - The Company's board of directors must approve the offer and the proposed follow-on merger under section 203 of the Delaware General Corporation Law (the "DGCL") or we, in our sole discretion, must be satisfied that the provisions of section 203 are otherwise inapplicable to the offer and the proposed merger; - We must be satisfied, in our sole discretion, that the provisions of article IV of the Company's bylaws are inapplicable to this transaction; and - The waiting periods under the HSR Act applicable to the purchase of shares under this offer must have expired or been terminated. 1 4 The offer is also subject to a number of other conditions. See section 14 of the offer to purchase -- "Certain Conditions of the Offer." WHAT DOES MANAGEMENT OF THE COMPANY THINK OF THIS OFFER? On March 8, 2001, the Company's board of directors rejected an earlier proposal by us for a transaction providing consideration of $55.00 per share in cash for all the Company's outstanding shares of common stock. The Company's board of directors has not approved this offer as of the date of this offer to purchase. Within 10 business days after the date of this offer to purchase, the Company is required by law to publish, send or give to you (and file with the Securities and Exchange Commission (the "SEC")) a statement as to whether it recommends acceptance or rejection of the offer, has no opinion with respect to the offer or is unable to take a position with respect to the offer. HOW MUCH ARE YOU OFFERING TO PAY, WHAT IS THE FORM OF PAYMENT AND WILL I HAVE TO PAY ANY FEES OR COMMISSIONS? We are offering to pay $55.00 per share, net to you, in cash. If you are the record owner of your shares and you tender your shares to us in the offer, you will not have to pay brokerage fees or similar expenses. If you own your shares through a broker or other nominee, and your broker tenders your shares on your behalf, your broker or nominee may charge you a fee for doing so. You should consult your broker or nominee to determine whether any charges will apply. See "Introduction" and section 1 of this offer to purchase -- "Terms of the Offer." DO YOU HAVE THE FINANCIAL RESOURCES TO MAKE PAYMENT? Yes. Shell will provide us with sufficient funds from cash on hand and readily available funds to acquire all shares in this transaction. The offer is not conditioned on any financing arrangements. See section 10 of this offer to purchase -- "Source and Amount of Funds." IS YOUR FINANCIAL CONDITION RELEVANT TO MY DECISION TO TENDER IN THE OFFER? We do not think our financial condition is relevant to your decision whether to tender shares and accept the offer because: - the offer is being made for all outstanding shares solely for cash; - the offer is not subject to any financing condition; and - if we consummate the offer, we will cash out all remaining shares in the merger and convert these shares into cash at the price per share we have paid pursuant to the offer. HOW LONG DO I HAVE TO DECIDE WHETHER TO TENDER IN THE OFFER? You will have at least until 12:00 midnight, New York City time, on April 6, 2001, to decide whether to tender your shares in the offer. Further, if you cannot deliver everything that is required in order to make a valid tender by that time, you may be able to use a guaranteed delivery procedure, which this offer to purchase discusses. See sections 1 and 2 of this offer to purchase -- "Terms of the Offer" and -- "Procedure for Tendering Shares and Rights -- Guaranteed Delivery." CAN THE OFFER BE EXTENDED AND UNDER WHAT CIRCUMSTANCES? Yes. We may extend the offer if at the time the offer is scheduled to expire, including at the end of an earlier extension, any of the offer conditions is not satisfied, or waived by us, or if we are required to extend the offer by the rules of the SEC. See section 1 of this offer to purchase -- "Terms of the Offer." We may also elect to provide a "subsequent offering period" for the offer. A subsequent offering period, if we include one, will be an additional period of time beginning after we have purchased shares tendered during the offer, during which stockholders may tender their shares and receive the offer consideration. If we decide to provide a subsequent offering period we will make a public announcement of our decision at least five business days in advance. We do not currently intend to include a subsequent offering period, although we reserve the right to do so. See section 1 of this offer to purchase -- "Terms of the Offer." 2 5 HOW WILL I BE NOTIFIED IF THE OFFER IS EXTENDED? If we extend the offer, we will inform Wilmington Trust Company, which is the depositary for the offer, of that fact and will make a public announcement of the extension, by not later than 9:00 a.m., New York City time, on the day after the day on which the offer was scheduled to expire. HOW DO I TENDER MY SHARES? To tender shares, you must deliver the certificates representing your shares, together with a completed letter of transmittal and any other documents required, to Wilmington Trust Company, the depositary for the offer, not later than the time the offer expires. If your shares are held in street name, the shares can only be tendered by your nominee through The Depository Trust Company. If you cannot deliver something that is required to the depositary by the expiration of the offer, you may get a little extra time to do so by having a broker, a bank or other fiduciary, which is a member of the Securities Transfer Agents Medallion Program or other eligible institution, guarantee that the missing items will be received by the depositary within three trading days. The depositary must receive the missing items within that three trading day period for the tender to be valid. See section 2 of this offer to purchase -- "Procedure for Tendering Shares and Rights." UNTIL WHAT TIME CAN I WITHDRAW PREVIOUSLY TENDERED SHARES? You can withdraw shares at any time until the offer has expired and, if we have not by May 10, 2001 agreed to accept your shares for payment, you can withdraw them at any time after that time until we accept shares for payment. If we decide to provide a subsequent offering period, we will accept shares tendered during that period immediately and thus you will not be able to withdraw shares tendered in the offer during any subsequent offering period. See sections 1 and 3 of this offer to purchase -- "Terms of the Offer" and "Withdrawal Rights." If for any reason we increase the offering price for your shares at any time after March 12, 2001, we will pay that price to all stockholders who have already tendered their shares to us. In that circumstance, you will not be required to withdraw and re-tender your shares in order to receive the increased price. HOW DO I WITHDRAW PREVIOUSLY TENDERED SHARES? To withdraw shares, you must deliver a written notice of withdrawal, or a facsimile of one, with the required information to the depositary while you still have the right to withdraw the shares. See sections 1 and 3 of this offer to purchase -- "Terms of the Offer" and "Withdrawal Rights." WILL THE TENDER OFFER BE FOLLOWED BY A MERGER IF ALL THE SHARES ARE NOT TENDERED IN THE OFFER? If the Purchaser purchases in the offer at least the number of shares that, when added to the shares then owned by Shell or Shell's direct or indirect subsidiaries, equals at least a majority of the shares of the Company outstanding on a fully diluted basis, the Purchaser will be merged with the Company. If that merger takes place, Shell and its affiliates will own all the shares of the Company, and all other stockholders of the Company will receive the same price we have paid in the offer, that is, $55.00 per share in cash, or any other higher price per share we paid in the offer. See "Introduction" and section 12 of this offer to purchase -- "Purpose of the Offer; Plans for the Company." There are no appraisal rights available in connection with the offer. If the merger takes place, however, stockholders who have not sold their shares in the offer and do not vote for, or consent to, that merger will have appraisal rights under Delaware law. See section 15 of this offer to purchase -- "Certain Legal Matters -- Appraisal Rights." IF I DECIDE NOT TO TENDER, HOW WILL THE OFFER AFFECT MY SHARES? If you and your fellow stockholders do not tender shares that, when added to the number of shares then owned by Shell or Shell's direct or indirect subsidiaries, equal at least a majority of the shares of the Company outstanding on a fully diluted basis, we may not purchase any shares pursuant to our offer or, if we do purchase shares pursuant to our offer, the merger may not take place. If the merger takes place, stockholders who do not tender in the offer will receive in the merger the same amount of cash per share they would have received had they tendered their shares in the offer. Therefore, if the merger takes place, the only difference to you between tendering shares and not tendering shares is that you will be paid earlier if you tender your shares. If we consummate our offer, then, until the merger takes place, or if for some reason it were never to take place, the number of stockholders of the Company and the shares of the Company that are still in the hands of the public 3 6 may be so small that an active public trading market, or, possibly, any public trading market, for the shares no longer will exist. Also in that event, the shares may no longer be eligible to be traded through the NYSE or any other securities exchange, and the Company may cease making filings with the SEC or otherwise cease being required to comply with the SEC's rules relating to publicly held companies. See sections 7 and 11 of this offer to purchase -- "Effect of the Offer on the Market for the Shares; Share Quotation; Exchange Act Registration; Margin Regulations" and "Purpose of the Offer; Plans for the Company." WHAT IS THE MARKET VALUE OF MY SHARES AS OF A RECENT DATE? On February 28, 2001, the last trading day before Shell delivered to the Company its letter offering a price of $55.00 per share, the last sale price of the shares reported by the NYSE was $44.25 per share. A $55.00 per share price represents a 24 percent premium over the February 28, 2001 last sale price. On March 6, 2001, the last trading day before the first public announcement of our intention to commence the offer, the last sale price of the shares reported by NYSE was $45.62 per share. On March 7, 2001, prior to the commencement of trading, Shell issued a press release announcing its proposal to acquire all outstanding shares of the Company for a price of $55.00 a share. On March 9, 2001, which was the last full trading day before commencement of the offer, the last reported sale price of the shares on the NYSE was $62.52 per share. We advise you to obtain a recent price for shares in deciding whether to tender your shares. If the rights are distributed and begin to trade separately from the shares, stockholders should be able to obtain, and should obtain, a current market price for the rights. See section 6 of this offer to purchase -- "Price Range of the Shares; Dividends on the Shares." WHO CAN I TALK TO IF I HAVE QUESTIONS ABOUT THE TENDER OFFER? You may call Morrow & Co., Inc., which is acting as the information agent, or Lehman Brothers Inc., which is acting as the dealer manager, for our offer. See the back cover page of this offer to purchase. MORROW & CO., INC. Call Collect: (212) 754-8000 Banks and Brokerage Firms, Please Call: (800) 654-2468 Stockholders Please Call: (800) 607-0088 E-mail: barrett.info@morrowco.com LEHMAN BROTHERS Call Collect: (212) 526-4867 or (713) 236-3965 E-mail: barrett.info@lehman.com 4 7 To the Holders of Common Stock (Including the Associated Rights) of Barrett Resources Corporation: INTRODUCTION SRM Acquisition Company, a Delaware corporation (the "Purchaser") and an indirect wholly owned subsidiary of Shell Oil Company, a Delaware corporation ("Shell"), hereby offers to purchase all outstanding shares of common stock, par value $.01 per share (the "shares"), of Barrett Resources Corporation, a Delaware corporation (the "Company"), together with the associated preferred stock purchase rights (the "Rights") outstanding under the Rights Agreement dated as of August 5, 1997, as amended (the "Rights Agreement"), between the Company and BankBoston, N.A., as Rights Agent (the "Rights Agent"), at a purchase price of $55.00 per share (and the associated Right), net to the seller in cash, without interest thereon, on the terms and subject to the conditions set forth in this offer to purchase and in the related letter of transmittal (which, together with any amendments or supplements hereto or thereto, collectively constitute the "offer"). All references herein to Rights include all benefits that may inure to holders of the Rights under the Rights Agreement and, unless the context otherwise requires, all references herein to shares include the Rights. In this offer to purchase, references to sections are to sections hereof unless otherwise indicated. Tendering stockholders will not be obligated to pay brokerage fees or commissions or, except as set forth in Instruction 6 of the letter of transmittal, transfer taxes on the purchase of shares under the offer. The Purchaser will pay all fees and expenses that Lehman Brothers Inc. ("Lehman Brothers"), which is acting as dealer manager, Wilmington Trust Company, which is acting as the depositary, and Morrow & Co., Inc., which is acting as the information agent, incur in connection with the offer. See section 16. The purpose of the offer is to enable Shell to acquire control of, and the entire equity interest in, the Company. The offer, as the first step in Shell's acquisition of the Company, is intended to facilitate the acquisition of all outstanding shares of the Company. Shell currently intends, as soon as practicable following consummation of the offer, to effect a merger or similar business combination of the Company with the Purchaser or another direct or indirect wholly owned subsidiary of Shell (the "proposed merger"). The Company would become an indirect wholly owned subsidiary as a result of this merger. When this merger takes place, each then outstanding share (other than shares owned by Shell or its direct or indirect subsidiaries, including the Purchaser, shares held in the treasury of the Company and shares owned by stockholders who perfect available appraisal rights under the Delaware General Corporation Law (the "DGCL")) would convert into the right to receive an amount in cash equal to the price per share the Purchaser has paid pursuant to the offer. In this offer to purchase, the term "transaction" refers to both the offer and the proposed merger. On March 8, 2001, after the Company's chief executive officer declined Shell's attempts to meet with the Company, the Company's board of directors rejected a proposal by Shell for a transaction providing consideration of $55.00 per share in cash for all the Company's outstanding shares. See section 11. Because the Company currently has in place a number of antitakeover measures that would render the transaction economically unfeasible and difficult to complete, Shell and the Purchaser are taking the following steps, in addition to the offer, to bring the transaction to the Company's stockholders: - by a letter dated March 7, 2001, Shell urged the Company's board of directors to take action to remove the impediments to its acquisition proposal that are contained in the Company's poison pill rights plan and bylaws (see section 11); - on March 7, 2001, Shell commenced the state court litigation described below against the Company; - on March 12, 2001, Shell amended the complaint in the state litigation previously commenced on March 7, 2001, the Purchaser joined as a plaintiff in that litigation and Shell commenced the federal court litigation described below; and - on March 12, 2001, the Purchaser filed preliminary consent solicitation materials with the SEC for use in connection with the solicitation of written consents from the stockholders (the "Consent Solicitation") for the purposes described below. IN CONNECTION WITH ITS REJECTION OF SHELL'S OFFER, THE COMPANY'S BOARD OF DIRECTORS AUTHORIZED MANAGEMENT TO PURSUE STRATEGIC ALTERNATIVES, INCLUDING SEEKING PROPOSALS FROM A NUMBER OF QUALIFIED PARTIES, RATHER THAN COMMENCING NEGOTIATIONS WITH SHELL ALONE. SHELL HAS CHOSEN TO TAKE ITS OFFER 5 8 DIRECTLY TO THE STOCKHOLDERS OF THE COMPANY RATHER THAN PARTICIPATE IN THE AUCTION PROCESS PROPOSED BY THE COMPANY'S BOARD OF DIRECTORS. SHELL AND THE PURCHASER PRESENTLY REMAIN WILLING TO NEGOTIATE WITH THE COMPANY WITH RESPECT TO SHELL'S ACQUISITION OF THE COMPANY. IF THOSE NEGOTIATIONS OCCUR AND RESULT IN A DEFINITIVE MERGER AGREEMENT BETWEEN THE COMPANY AND SHELL, THE OFFER PRICE OR TERMS OF THE OFFER COULD CHANGE FROM THE PRICE AND TERMS THIS OFFER TO PURCHASE DESCRIBES, AND THE CONSIDERATION TO BE RECEIVED BY HOLDERS OF SHARES COULD INCLUDE OR CONSIST OF SECURITIES, CASH OR ANY COMBINATION THEREOF. ACCORDINGLY, THOSE NEGOTIATIONS COULD RESULT IN, AMONG OTHER THINGS, TERMINATION OF THE OFFER (SEE SECTION 14) AND SUBMISSION OF A DIFFERENT ACQUISITION PROPOSAL TO THE COMPANY'S STOCKHOLDERS FOR THEIR APPROVAL. In the Consent Solicitation, the Company will be seeking written consents from stockholders of the Company for the following purposes: (1) to remove without cause all members of the board of directors of the Company who are in office immediately prior to that removal, and (2) to elect Messrs. Francis L. Durand, R. W. Leftwich and J. Hugh Roff Jr. (the "Nominees") to serve as directors of the Company. The effectiveness of the proposal to remove the Company's board of directors is not subject to, or conditioned on, the effectiveness of the proposal to elect the Nominees. Absent judicial relief, which Shell and the Purchaser are seeking, or action by the Company's board of directors, a Company bylaw requiring advance notice of stockholder nominations for directors to be elected by written consent of the stockholders could delay the election of the Nominees. If such a delay were to occur following the removal of the entire board in accordance with the removal proposal, section 223 of the DGCL provides a mechanism for the election of new directors of the Company. That section provides that if a Delaware corporation should at any time have no directors in office, various persons, including any of the corporation's officers and stockholders, may apply to the Delaware Court of Chancery for a decree summarily ordering an election of directors pursuant to section 211 of the DGCL provides. The principal reason the Purchaser is seeking to replace the Company's board with the Nominees is the willingness of the Nominees to consider, consistent with their fulfillment of their fiduciary duties under Delaware law, whether to take such actions as they may deem necessary or appropriate to expedite the prompt consummation of our transaction, including: - redeeming the Rights or amending the Rights Agreement to make the Rights inapplicable to the offer and proposed merger, thereby satisfying one of the Purchaser's conditions to the consummation of the offer; - approving the offer and the proposed merger before Shell and the Purchaser become "interested stockholders" under section 203, thereby satisfying another of the Purchaser's conditions to the consummation of the offer; and - rendering inapplicable, if otherwise applicable, article IV of the Company's bylaws to our transaction, thereby satisfying the Bylaws Condition; or, if a proposal has been made respecting a transaction that is determined to be superior to our transaction for the Company's stockholders, whether to take such actions as they may deem necessary or appropriate to facilitate that proposed transaction. The adoption of the proposals by the Company's stockholders would expedite the prompt consummation of the transaction. This adoption would require the affirmative written consent of the holders of a majority of the outstanding shares of the Company's common stock and either the amendment or waiver by the Company's board of directors of one or more provisions in the Company's bylaws or the invalidation of those provisions by, or other relief from, a court. THE OFFER DOES NOT CONSTITUTE A SOLICITATION OF CONSENTS FROM THE COMPANY'S STOCKHOLDERS. ANY SUCH SOLICITATION (INCLUDING THE CONSENT SOLICITATION) WILL BE MADE ONLY BY SEPARATE CONSENT SOLICITATION MATERIALS COMPLYING WITH THE REQUIREMENTS OF SECTION 14(a) OF THE SECURITIES EXCHANGE ACT OF 1934 (THE "EXCHANGE ACT"). On March 7, 2001, Shell commenced litigation against the Company in the Chancery Court, New Castle County, Delaware seeking declaratory and injunctive relief to invalidate certain of the Company's bylaw provisions on grounds that the provisions are improper limitations on the ability of the Company's stockholders to act by written consent and to enjoin the Company from enforcing those provisions. On March 12, 2001, the Purchaser joined Shell as a plaintiff in this lawsuit, and they amended the original complaint to add the present members of the Company's board of directors as defendants. In addition, on March 12, 2001, Shell and the Purchaser commenced litigation against the Company in the United States District Court for the District of Delaware seeking declaratory and injunctive relief to (1) declare 6 9 that the Schedule TO documents and exhibits thereto, including this offer to purchase, and the Consent Solicitation materials filed with the SEC by Shell and the Purchaser are proper and comply with all applicable securities laws, rules and regulations and (2) enjoin the Company from commencing litigation relating to the transaction other than in state and federal court in Delaware. Section 5 describes various federal income tax consequences of the sale of shares pursuant to the offer. The offer is subject to the fulfillment of a number of conditions including, without limitation, the following: Minimum Tender Condition. THE OFFER IS CONDITIONED ON THERE BEING VALIDLY TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION DATE THAT NUMBER OF SHARES, THAT WHEN ADDED TO THE NUMBER OF SHARES THEN OWNED BY SHELL OR SHELL'S DIRECT OR INDIRECT SUBSIDIARIES (THE "MINIMUM NUMBER OF SHARES"), WOULD REPRESENT AT LEAST A MAJORITY OF ALL OUTSTANDING SHARES ON A FULLY DILUTED BASIS ON THE DATE OF PURCHASE, WITHOUT GIVING EFFECT TO ANY DILUTION THAT MIGHT ARISE FROM EXERCISE OF THE RIGHTS. THE PURCHASER RESERVES THE RIGHT (SUBJECT TO THE APPLICABLE RULES AND REGULATIONS OF THE SEC), WHICH IT PRESENTLY HAS NO INTENTION OF EXERCISING, TO WAIVE OR REDUCE THE MINIMUM TENDER CONDITION AND TO ELECT TO PURCHASE, PURSUANT TO THE OFFER, FEWER THAN THE MINIMUM NUMBER OF SHARES. SEE SECTIONS 1 AND 14. According to the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 2000 (the "Company 2000 10-Q"), as of November 8, 2000, there were 33,055,586 shares outstanding. According to the Company's Annual Report on Form 10-K for the year ended December 31, 1999 (the "Company 1999 10-K"), as of December 31, 1999, there were 2,710,824 shares under option. According to a press release issued by the Company on March 1, 2001, there were 33,394,063 shares outstanding as of December 31, 2000. For purposes of the offer, "fully diluted basis" assumes that all outstanding stock options are presently exercisable. The actual minimum number of shares will depend on the facts as they exist on the date of purchase. Rights Condition. THE OFFER IS CONDITIONED ON THE RIGHTS HAVING BEEN REDEEMED BY THE BOARD OF DIRECTORS OF THE COMPANY OR THE PURCHASER BEING SATISFIED, IN ITS SOLE DISCRETION, THAT THE RIGHTS HAVE BEEN INVALIDATED OR ARE OTHERWISE INAPPLICABLE TO THE OFFER AND THE PROPOSED MERGER. THE RIGHTS ARE DESCRIBED IN THE COMPANY'S AMENDED REGISTRATION STATEMENT ON FORM 8-A DATED MARCH 17, 1999 (THE "COMPANY FORM 8-A") AND EXHIBIT 4.1B TO THE COMPANY'S ANNUAL REPORT ON FORM 10-K FOR THE YEAR ENDED DECEMBER 31, 1998 (THE "COMPANY 10-K EXHIBIT"), AND A SUMMARY OF THOSE DESCRIPTIONS IS PROVIDED BELOW AND IN SECTION 8. The Rights Agreement provides that, until the Distribution Date (as defined in section 8), the Rights will be evidenced by the certificates for shares. Until the Distribution Date (or earlier redemption or expiration of the Rights), the surrender for transfer of any certificates for shares will also constitute the surrender for transfer of the Rights associated with the shares represented by those certificates. The Rights Agreement further provides that, as soon as practicable following the Distribution Date, separate certificates representing the Rights will be mailed to holders of record of shares as of the close of business on the Distribution Date. The Rights Agreement provides that at any time prior to the acquisition by a person or group of affiliated or associated persons of beneficial ownership of 15 percent or more of the outstanding shares, the board of directors of the Company may redeem the Rights, in whole but not in part, at a redemption price of $.001 per Right. The redemption of the Rights may be made effective at such time, on such basis and with such conditions as the board of directors, in its sole discretion, may establish. On any redemption of the Rights, the right to exercise the Rights will terminate and the only right of holders of Rights will be to receive that redemption price. Unless the Company's board of directors redeems the Rights, amends the Rights Agreement to make the Rights inapplicable to the offer or delays the Distribution Date, the Purchaser believes that, as a result of Shell's announcement on March 7, 2001 of its intention to commence the offer, the Distribution Date may occur as early as March 21, 2001. On the basis of publicly available information, the Purchaser believes that, as of March 12, 2001, the Rights were not exercisable, certificates for Rights had not yet been issued and the Rights were evidenced by the certificates for shares. UNLESS THE RIGHTS CONDITION IS SATISFIED, STOCKHOLDERS WILL BE REQUIRED TO TENDER ONE RIGHT FOR EACH SHARE TENDERED IN ORDER TO EFFECT A VALID TENDER OF SHARES IN ACCORDANCE WITH THE PROCEDURES THAT SECTION 2 SETS FORTH. UNLESS THE DISTRIBUTION DATE OCCURS, A TENDER OF SHARES WILL ALSO CONSTITUTE A TENDER OF THE ASSOCIATED RIGHTS. 7 10 The Purchaser believes that under the circumstances of the offer, and under applicable law, the board of directors of the Company has a fiduciary obligation to redeem the Rights (or amend the Rights Agreement to make the Rights inapplicable to the transaction), and the Purchaser is hereby requesting that the board do so. There can be no assurance that the board of directors of the Company will redeem the Rights (or amend the Rights Agreement). By means of the Consent Solicitation, the Purchaser expects to seek to remove without cause the Company's entire board of directors and to replace them with the Nominees. If elected to the board, the Nominees may redeem the Rights (or amend the Rights Agreement to make the Rights inapplicable to the transaction), thereby satisfying the Rights Condition. Business Combination Condition. THE OFFER IS CONDITIONED ON THE ACQUISITION OF SHARES PURSUANT TO THE OFFER AND THE PROPOSED MERGER HAVING BEEN APPROVED UNDER SECTION 203 OF THE DGCL, OR THE PURCHASER BEING SATISFIED, IN ITS SOLE DISCRETION, THAT THE PROVISIONS OF SECTION 203 ARE OTHERWISE INAPPLICABLE TO THE PURCHASE OF SHARES IN THE OFFER AND THE PROPOSED MERGER. THE PROVISIONS OF SECTION 203 ARE DESCRIBED MORE FULLY IN SECTION 15. Section 203, in general, prohibits a Delaware corporation such as the Company from engaging in a "Business Combination" with an "Interested Stockholder" for a period of three years following the time that such person became an Interested Stockholder unless (i) prior to the time that such person became an Interested Stockholder, the board of directors of the corporation approved either the Business Combination or the transaction that resulted in the stockholder becoming an Interested Stockholder, (ii) on consummation of the transaction that resulted in the stockholder becoming an Interested Stockholder, the Interested Stockholder owned at least 85 percent of the voting stock of the corporation outstanding at the time the transaction commenced, excluding stock held by directors who are also officers of the corporation and employee stock plans that do not provide employees with the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer, or (iii) at or subsequent to the time such person became an Interested Stockholder, the Business Combination is approved by the board of directors of the corporation and authorized at a meeting of stockholders, and not by written consent, by the affirmative vote of the holders of at least 66 2/3 percent of the outstanding voting stock of the corporation not owned by the Interested Stockholder. See section 15. The Purchaser is hereby requesting that the Company's board of directors adopt a resolution approving the offer and the proposed merger for purposes of section 203. There can be no assurance that the board will do so. By means of the Consent Solicitation, the Purchaser expects to seek to remove without cause the members of the current board of directors of the Company and to replace them with the Nominees. If elected to the board, the Nominees may approve the transaction under section 203, thereby satisfying the Business Combination Condition. Bylaws Condition. THE OFFER IS CONDITIONED ON THE PURCHASER BEING SATISFIED, IN ITS SOLE DISCRETION, THAT THE PROVISIONS OF ARTICLE IV OF THE COMPANY'S BYLAWS ARE INAPPLICABLE TO THE ACQUISITION OF SHARES IN THE TRANSACTION. Article IV of the Company's bylaws provides that a stockholder who becomes the beneficial owner of 15 percent or more of the outstanding voting stock of the Company (an "interested person") may not, with specified exceptions, acquire additional shares of voting stock of the Company unless this restriction is waived by nonemployee directors who are not affiliated with and were not nominated by that interested person after the time it became an interested person. See section 15. By means of the Consent Solicitation, the Purchaser expects to seek to remove without cause the members of the current board of directors of the Company and to replace them with the Nominees. If elected to the board, the Nominees may waive the applicability, if any, of article IV to the transaction, thereby satisfying the Bylaws Condition. HSR Condition. THE OFFER IS CONDITIONED ON THE WAITING PERIODS UNDER THE HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT OF 1976 APPLICABLE TO THE PURCHASE OF SHARES UNDER THE OFFER HAVING EXPIRED OR BEEN TERMINATED. SECTION 15 DISCUSSES VARIOUS ANTITRUST MATTERS. Section 5 describes various U.S. federal income tax consequences of the sale of shares pursuant to the offer and the conversion of shares in the proposed merger. 8 11 THIS OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL CONTAIN IMPORTANT INFORMATION THAT YOU SHOULD READ BEFORE MAKING ANY DECISION RESPECTING THE OFFER. THE TENDER OFFER SECTION 1. TERMS OF THE OFFER On the terms and subject to the conditions of the offer, the Purchaser will accept for payment and pay for all shares validly tendered prior to the expiration date and not theretofore withdrawn in accordance with section 3. The term "expiration date" means 12:00 midnight, New York City time, on April 6, 2001, unless and until the Purchaser, in its sole discretion, shall have extended the period of time during which the offer is open, in which event the term "expiration date" will mean the latest time and date on which the offer, as so extended by the Purchaser, will expire. THE OFFER IS CONDITIONED ON SATISFACTION OF THE MINIMUM TENDER CONDITION, THE RIGHTS CONDITION, THE BUSINESS COMBINATION CONDITION, THE BYLAWS CONDITION, THE HSR CONDITION AND THE SATISFACTION OF THE OTHER CONDITIONS SET FORTH IN SECTION 14. Subject to the applicable rules and regulations of the SEC, the Purchaser reserves the right (but will not be obligated except as described below), in its sole discretion, at any time and from time to time, and regardless of whether or not any of the events or facts section 14 sets forth shall have occurred, (i) to extend the period of time during which the offer is open, and thereby delay acceptance for payment of and the payment for any shares, by giving oral or written notice of that extension to the depositary, (ii) to elect to provide a subsequent offering period for the offer in accordance with Exchange Act Rule 14d-11, and (iii) to amend the offer in any other respect by giving oral or written notice of that amendment to the depositary. UNDER NO CIRCUMSTANCES WILL THE PURCHASER PAY INTEREST ON THE PURCHASE PRICE FOR TENDERED SHARES, WHETHER OR NOT IT EXERCISES ITS RIGHT TO EXTEND THE OFFER. If by 12:00 midnight, New York City time, on April 6, 2001 (or any date or time then set as the expiration date), any or all of the conditions to the offer have not been satisfied or waived, the Purchaser reserves the right (but will not be obligated except as described below), subject to the applicable rules and regulations of the SEC, (i) to terminate the offer and not accept for payment or pay for any shares and return all tendered shares to tendering stockholders, (ii) to elect to provide a subsequent offering period for the offer in accordance with Exchange Act Rule 14d-11, (iii) to waive all the unsatisfied conditions and accept for payment and pay for all shares validly tendered prior to the expiration date and not theretofore withdrawn, (iv) to extend the offer and, subject to the right of stockholders to withdraw shares until the expiration date, retain the shares that have been tendered during the period or periods for which the offer is extended or (v) to amend the offer. There can be no assurance that the Purchaser will exercise its right to extend the offer. Any extension, waiver, amendment or termination will be followed as promptly as practicable by a public announcement thereof. In the case of an extension, Exchange Act Rule 14e-1(d) requires that the announcement be issued no later than 9:00 a.m., New York City time, on the next business day after the previously scheduled expiration date in accordance with the public announcement requirements of Exchange Act Rule 14d-4(c). Subject to applicable law (including Exchange Act Rules 14d-4(c) and 14d-6(d), which require that any material change in the information published, sent or given to stockholders in connection with the offer be promptly disseminated to stockholders in a manner reasonably designed to inform stockholders of that change) and without limiting the manner in which the Purchaser may choose to make any public announcement, the Purchaser will not have any obligation to publish, advertise or otherwise communicate any such public announcement other than by making a release to the Dow Jones News Service. As used in this offer to purchase, "business day" has the meaning Exchange Act Rule 14d-1 sets forth. If the Purchaser extends the offer, is delayed in its acceptance for payment of or payment (whether before or after its acceptance for payment) for shares or is unable to pay for shares pursuant to the offer for any reason, then, without prejudice to the Purchaser's rights under the offer, the depositary may retain tendered shares on behalf of the Purchaser, and those shares may not be withdrawn except to the extent tendering stockholders are entitled to withdrawal rights as section 3 describes. However, the ability of the Purchaser to delay the payment for shares that the Purchaser has accepted for payment is limited by Exchange Act Rule 14e-l(c), which requires that a bidder pay the consideration offered or return the securities deposited by or on behalf of holders of securities promptly after the termination or withdrawal of that bidder's offer. 9 12 If the Purchaser makes a material change in the terms of the offer or the information concerning the offer or waives a material condition of the offer, it will disseminate additional tender offer materials and extend the offer to the extent Exchange Act Rules 14d-4(c), 14d-6(d) and 14e-1 require. The minimum period during which an offer must remain open following material changes in its terms or the information concerning it, other than a change in price or the percentage of securities sought, will depend upon the facts and circumstances then existing, including the relative materiality of the changed terms or information. With respect to a change in price or a change in the percentage of securities sought, a minimum period of 10 business days is generally required to allow for adequate dissemination to stockholders and investor response. Under Exchange Act Rule 14d-11, the Purchaser may, subject to certain conditions, provide a subsequent offering period of from three to 20 business days in length following the expiration of the offer on the expiration date. A subsequent offering period would be an additional period of time, following the expiration of the offer and the purchase of shares in the offer, during which stockholders may tender shares not tendered into the offer. A subsequent offering period, if one is included, is not an extension of the offer, which already will have been completed. During a subsequent offering period, tendering stockholders will not have withdrawal rights, and the Purchaser will promptly purchase and pay for any shares tendered at the same price it paid in the offer. Exchange Act Rule 14d-11 provides that the Purchaser may provide a subsequent offering period so long as, among other things, the initial 20 business day period of the offer has expired and the Purchaser (i) offers the same form and amount of consideration for shares in the subsequent offering period as in the initial offer, (ii) accepts and promptly pays for all securities tendered during the offer prior to its expiration, (iii) announces the results of the offer, including the approximate number and percentage of shares deposited in the offer, no later than 9:00 a.m., New York City time, on the next business day after the expiration date and immediately begins the subsequent offering period and (iv) immediately accepts and promptly pays for shares as they are tendered during the subsequent offering period. The Purchaser will be able to include a subsequent offering period, if it satisfies the conditions above, after April 6, 2001. In a public release, the SEC has expressed the view that the inclusion by a bidder of a subsequent offering period would constitute a material change in the terms of its offer which would require it to disseminate new information to its offerers in a manner reasonably calculated to inform them of that change sufficiently in advance of the expiration date of the offer (generally five business days). If the Purchaser elects to include a subsequent offering period, it will notify stockholders of the Company consistent with the requirements of the SEC. THE PURCHASER DOES NOT CURRENTLY INTEND TO INCLUDE A SUBSEQUENT OFFERING PERIOD IN THE OFFER, ALTHOUGH IT RESERVES THE RIGHT TO DO SO IN ITS SOLE DISCRETION. UNDER EXCHANGE ACT RULE 14D-7, NO WITHDRAWAL RIGHTS APPLY TO SHARES AND RIGHTS TENDERED DURING A SUBSEQUENT OFFERING PERIOD AND NO WITHDRAWAL RIGHTS APPLY DURING THE SUBSEQUENT OFFERING PERIOD WITH RESPECT TO SHARES AND RIGHTS TENDERED IN THE OFFER AND ACCEPTED FOR PAYMENT. THE PURCHASER WILL PAY THE SAME CONSIDERATION TO STOCKHOLDERS TENDERING SHARES IN THE OFFER OR IN A SUBSEQUENT OFFERING PERIOD, IF IT INCLUDES ONE. Requests are being made to the Company under Exchange Act Rule 14d-5 and section 220 of the DGCL for the use of the Company's stockholder lists and security position listings for the purpose of disseminating the offer and consent solicitation materials to holders of shares. This offer to purchase, the related letter of transmittal and other relevant materials will be mailed to record holders of shares, and will be furnished to brokers, dealers, banks, trust companies and similar persons whose names, or the names of whose nominees, appear on the stockholder lists, or, if applicable, who are listed as participants in a clearing agency's security position listing, for subsequent transmittal to beneficial owners of shares, by the Purchaser following receipt of such lists or listings from the Company, or by the Company if it so elects. SECTION 2. PROCEDURE FOR TENDERING SHARES AND RIGHTS Valid Tender. For a stockholder validly to tender shares and Rights pursuant to the offer, either (i) a letter of transmittal (or a facsimile thereof), properly completed and duly executed, together with any required signature guarantees, or, in the case of a book-entry transfer, an agent's message (as defined below), and any other required documents, must be received by the depositary at one of its addresses set forth on the back cover of this offer to purchase prior to the expiration date and either certificates for tendered shares and Rights must be received by the depositary at one of those addresses or those shares and Rights must be delivered in accordance with the procedures for book-entry transfer set forth below (and a book-entry confirmation (as defined below) must be received by the depositary), in each case prior to the expiration date, or (ii) the tendering stockholder must comply with the guaranteed delivery procedures described below. 10 13 UNLESS THE RIGHTS CONDITION IS SATISFIED, STOCKHOLDERS WILL BE REQUIRED TO TENDER ONE RIGHT FOR EACH SHARE TENDERED IN ORDER TO EFFECT A VALID TENDER OF SHARES. ACCORDINGLY, STOCKHOLDERS WHO SELL THEIR RIGHTS SEPARATELY FROM THEIR SHARES AND DO NOT OTHERWISE ACQUIRE RIGHTS MAY NOT BE ABLE TO SATISFY THE REQUIREMENTS OF THE OFFER FOR A VALID TENDER OF SHARES. As section 8 describes further, the Rights Agreement provides that until the Distribution Date, the Rights will be evidenced by the certificates for the shares and may be transferred with and only with the shares. The Rights Agreement further provides that, as soon as practicable following the Distribution Date, separate certificates representing the Rights are to be mailed by the Company or the Rights Agent to holders of record of shares as of the close of business on the Distribution Date. UNLESS THE DISTRIBUTION DATE OCCURS, A TENDER OF SHARES WILL ALSO CONSTITUTE A TENDER OF THE ASSOCIATED RIGHTS. If the Distribution Date occurs and the Company or the Rights Agent distributes separate certificates representing the Rights to a holder of shares prior to the time that holder tenders shares pursuant to the offer, certificates representing a number of Rights equal to the number of shares tendered must be delivered to the depositary, or, if available, a book-entry confirmation must be received by the depositary with respect thereto, in order for those shares to be validly tendered. If the Distribution Date occurs and separate certificates representing the Rights are not distributed prior to the time shares are tendered pursuant to the offer, Rights may be tendered prior to a stockholder receiving the certificates for Rights by use of the guaranteed delivery procedure described below. A tender of shares constitutes an agreement by the tendering stockholder to deliver certificates representing a number of Rights equal to the number of shares tendered pursuant to the offer to the depositary prior to expiration of the period permitted by those guaranteed delivery procedures for delivery of certificates for, or a book-entry confirmation with respect to, Rights (the "Rights Delivery Period"). After expiration of the Rights Delivery Period, the Purchaser may elect to reject as invalid a tender of shares with respect to which certificates for, or a book-entry confirmation with respect to, an equal number of Rights have not been received by the depositary. Nevertheless, the Purchaser will be entitled to accept for payment shares tendered by a stockholder prior to receipt of the certificates for the Rights required to be tendered with those shares, or a book-entry confirmation with respect to those Rights, and either (i) subject to complying with applicable rules and regulations of the SEC, withhold payment for those shares pending receipt of the certificates for, or a book-entry confirmation with respect to, such Rights or (ii) make payment for shares accepted for payment pending receipt of the certificates for, or a book-entry confirmation with respect to, those Rights in reliance on the agreement of a tendering stockholder to deliver Rights and those guaranteed delivery procedures. The Purchaser will make any determination to make payment for shares in reliance on that agreement and these guaranteed delivery procedures or, after expiration of the Rights Delivery Period, to reject a tender as invalid in its sole and absolute discretion. Book-Entry Transfer. The depositary will establish accounts with respect to the shares at The Depository Trust Company (the "book-entry transfer facility") for purposes of the offer within two business days after the date of this offer to purchase. Any financial institution that is a participant in the book-entry transfer facility's system may make book-entry delivery of shares by causing the book-entry transfer facility to transfer those shares into the depositary's account in accordance with the book-entry transfer facility's procedures for that transfer. Although delivery of shares may be effected through book-entry transfer into the depositary's account at the book-entry transfer facility, the letter of transmittal (or a facsimile thereof), properly completed and duly executed, with any required signature guarantees, or an agent's message, and any other required documents, must, in any case, be transmitted to, and received by, the depositary at one of its addresses set forth on the back cover of this offer to purchase prior to the expiration date, or the tendering stockholder must comply with the guaranteed delivery procedures described below. If the Distribution Date occurs, the depositary will also make a request to establish an account with respect to the Rights at the book-entry transfer facility, but no assurance can be given that book-entry delivery of Rights will be available. If book-entry delivery of Rights is available, the foregoing book-entry transfer procedures will also apply to Rights. If book-entry delivery of Rights is not available and the Distribution Date occurs, a tendering stockholder will be required to tender Rights by means of physical delivery to the depositary of certificates for Rights (in which event references in this offer to purchase to book-entry confirmations with respect to Rights will be inapplicable). The confirmation of a book-entry transfer of shares or Rights into the depositary's account at the book-entry transfer facility as described above is referred to herein as a "book-entry confirmation." DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY TRANSFER FACILITY IN ACCORDANCE WITH THE BOOK-ENTRY TRANSFER FACILITY'S PROCEDURES DOES NOT CONSTITUTE DELIVERY TO THE DEPOSITARY. The term "agent's message" means a message transmitted by the book-entry transfer facility to, and received by, the depositary and forming a part of a book-entry confirmation, which states that the book-entry transfer facility has received an express acknowledgment from the participant in the book-entry transfer facility tendering the shares that the participant has received and agrees to be bound by the terms of the letter of transmittal and that the Purchaser may enforce such agreement against the participant. 11 14 THE METHOD OF DELIVERY OF SHARES, RIGHTS, THE LETTER OF TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH THE BOOK-ENTRY TRANSFER FACILITY, IS AT THE ELECTION AND RISK OF THE TENDERING STOCKHOLDER. SHARES WILL BE DEEMED DELIVERED ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY (INCLUDING, IN THE CASE OF A BOOK-ENTRY TRANSFER, BY BOOK-ENTRY CONFIRMATION). IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY. Signature Guarantees. No signature guarantee is required on the letter of transmittal (i) if the letter of transmittal is signed by the registered holder(s) (which term, for purposes of this section 2, includes any participant in the book-entry transfer facility's system whose name appears on a security position listing as the owner of the shares) of shares and Rights tendered therewith and that registered holder has not completed either the box entitled "Special Delivery Instructions" or the box entitled "Special Payment Instructions" on the letter of transmittal or (ii) if those shares and Rights are tendered for the account of a financial institution (including most commercial banks, savings and loan associations and brokerage houses) that is a participant in the Security Transfer Agents Medallion Program, the NYSE Medallion Signature Guarantee Program or the Stock Exchange Medallion Program (each such participant, an "eligible institution"). In all other cases, all signatures on the letter of transmittal must be guaranteed by an eligible institution. See Instructions 1 and 5 to the letter of transmittal. If the certificates for shares or Rights are registered in the name of a person other than the signer of the letter of transmittal, or if payment is to be made or certificates for shares or Rights not tendered or not accepted for payment are to be returned to a person other than the registered holder of the certificates surrendered, the tendered certificates must be endorsed or accompanied by appropriate stock powers, in either case signed exactly as the name or names of the registered holders or owners appear on the certificates, with the signatures on the certificates or stock powers guaranteed as aforesaid. See Instructions 1 and 5 to the letter of transmittal. Guaranteed Delivery. If a stockholder desires to tender shares and Rights pursuant to the offer and that stockholder's certificates for shares or Rights are not immediately available (including because certificates for Rights have not yet been distributed) or the procedures for book-entry transfer cannot be completed on a timely basis or time will not permit all required documents to reach the depositary prior to the expiration date, that stockholder's tender may be effected if all the following conditions are met: (i) such tender is made by or through an eligible institution; (ii) a properly completed and duly executed notice of guaranteed delivery, substantially in the form provided by the Purchaser, is received by the depositary, as provided below, prior to the expiration date; and (iii) the certificates for all tendered shares and/or Rights, in proper form for transfer (or a book-entry confirmation with respect to all those shares and/or Rights), together with a letter of transmittal (or a facsimile thereof), properly completed and duly executed, with any required signature guarantees, or, in the case of a book-entry transfer, an agent's message, and any other required documents are received by the depositary within (a) in the case of shares, three trading days after the date of execution of that notice of guaranteed delivery or (b) in the case of Rights, a period ending on the later of (1) three trading days after the date of execution of that notice of guaranteed delivery or (2) three business days (as defined above) after the date certificates for Rights are distributed to stockholders. A "trading day" is any day on which the NYSE is open for business. The notice of guaranteed delivery may be delivered by hand to the depositary or transmitted by telegram, facsimile transmission or mail to the depositary and must include a guarantee by an eligible institution in the form that notice of guaranteed delivery sets forth. Notwithstanding any other provision hereof, payment for shares accepted for payment pursuant to the offer will in all cases be made only after timely receipt by the depositary of (i) certificates for (or a timely book-entry confirmation with respect to) those shares and, if the Distribution Date occurs, certificates for (or a timely book-entry confirmation, if available, with respect to) the associated Rights (unless the Purchaser elects to make payment for those shares pending receipt of the certificates for, or a book-entry confirmation with respect to, those Rights as described above), (ii) a letter of transmittal (or facsimile thereof), properly completed and duly executed, with any required signature guarantees, or, in the case of a book-entry transfer, an agent's message, and (iii) any other documents required by the letter of transmittal. Accordingly, tendering stockholders may be paid at different times depending on when certificates for shares (or Rights) or book-entry confirmations with respect to shares (or Rights, if available) are actually received by the depositary. UNDER NO CIRCUMSTANCES WILL THE 12 15 PURCHASER PAY INTEREST ON THE PURCHASE PRICE OF THE SHARES IT PURCHASES, REGARDLESS OF ANY EXTENSION OF THE OFFER OR ANY DELAY IN MAKING THAT PAYMENT. If the Rights Condition is satisfied, the guaranteed delivery procedures with respect to certificates for Rights and the requirement for the tender of Rights will no longer apply. The valid tender of shares and, if applicable, Rights in accordance with one of the procedures described above will constitute a binding agreement between the tendering stockholder and the Purchaser on the terms and subject to the conditions of the offer. Appointment. By executing a letter of transmittal (or a facsimile thereof), a tendering stockholder will irrevocably appoint designees of the Purchaser as that stockholder's attorneys-in-fact and proxies in the manner set forth in the letter of transmittal, each with full power of substitution, to the full extent of that stockholder's rights with respect to the shares and Rights tendered by that stockholder and accepted for payment by the Purchaser and with respect to any and all other shares, Rights or other securities or rights issued or issuable in respect of those shares on or after March 12, 2001. All such proxies will be considered coupled with an interest in the tendered shares and Rights. This appointment by a tendering stockholder will be effective when, and only to the extent that, the Purchaser accepts for payment shares tendered by that stockholder as provided herein. On that appointment, all prior powers of attorney, proxies and consents given by the appointing stockholder with respect to its shares accepted for payment (except for any consents issued under the Consent Solicitation), Rights or other securities or rights will, without further action, be revoked and no subsequent powers of attorney, proxies, consents or revocations may be given (and, if given, will not be effective). The designees of the Purchaser will thereby be empowered to exercise all voting and other rights with respect to those shares, Rights and other securities or rights in respect of any annual, special or adjourned meeting of the Company's stockholders, actions by written consent without any such meeting or otherwise, as they in their sole discretion deem proper. The Purchaser reserves the right to require that, in order for shares and Rights to be deemed validly tendered, the Purchaser must be able, immediately on the Purchaser's acceptance for payment of those shares and Rights, to exercise full voting, consent and other rights with respect to those shares, Rights and other securities or rights, including voting at any meeting of stockholders or acting by written consent without such a meeting. Determination of Validity. The Purchaser will decide, in its sole discretion, all questions as to the validity, form, eligibility (including time of receipt) and acceptance of any tender of shares or Rights, and each such decision will be final and binding. The Purchaser reserves the absolute right to reject any or all tenders it determines not to be in proper form or the acceptance for payment of or payment for which may, in the opinion of the Purchaser's counsel, be unlawful. The Purchaser also reserves the absolute right to waive any defect or irregularity in the tender of any shares or Rights of any particular stockholder whether or not it waives similar defects or irregularities in the case of other stockholders. No tender of shares will be deemed to have been validly made until all defects or irregularities relating thereto have been cured or waived. None of the Purchaser, Shell, the depositary, the information agent, the dealer manager or any other person will be under any duty to give notification of any defects or irregularities in tenders or incur any liability for failure to give any such notification. The Purchaser's interpretation of the terms and conditions of the offer (including the letter of transmittal and the instructions thereto) will be final and binding. Backup U.S. Federal Income Tax Withholding. Under the U.S. federal income tax laws, payments in connection with the transaction may be subject to "backup withholding" at a rate of 31 percent unless a stockholder that holds shares (i) provides a correct taxpayer identification number (which, for an individual stockholder, is the stockholder's social security number) and any other required information or (ii) is a corporation or comes within certain other exempt categories and, when required, demonstrates this fact and otherwise complies with applicable requirements of the backup withholding rules. A stockholder that does not provide a correct taxpayer identification number may be subject to penalties imposed by the Internal Revenue Service. To prevent backup U.S. federal income tax withholding on cash payable under the offer or in the proposed merger, as the case may be, each stockholder should provide the depositary with his or her correct taxpayer identification number and certify that he or she is not subject to backup U.S. federal income tax withholding by completing the Substitute Internal Revenue Service Form W-9 the letter of transmittal includes. Noncorporate foreign stockholders should complete and sign an Internal Revenue Service Form W-8, Certificate of Foreign Status, a copy of which may be obtained from the depositary, in order to avoid backup withholding. See Instruction 9 to the letter of transmittal. 13 16 SECTION 3. WITHDRAWAL RIGHTS Except as this section 3 otherwise provides, tenders of shares and Rights will be irrevocable. Shares and Rights tendered pursuant to the offer may be withdrawn pursuant to the procedures set forth below at any time prior to the expiration date and, unless theretofore accepted for payment and paid for by the Purchaser pursuant to the offer, may also be withdrawn at any time after May 10, 2001. For a withdrawal to be effective, a written notice of withdrawal must be received in a timely manner by the depositary at one of its addresses set forth on the back cover of this offer to purchase and must specify the name of the person having tendered the shares and Rights to be withdrawn, the number of shares and Rights to be withdrawn and the name of the registered holder of the shares and Rights to be withdrawn, if different from the name of the person who tendered the shares and Rights. If certificates for shares or Rights have been delivered or otherwise identified to the depositary, then, prior to the physical release of those certificates, the serial numbers shown on those certificates must be submitted to the depositary and, unless such shares or Rights have been tendered by an eligible institution, the signatures on the notice of withdrawal must be guaranteed by an eligible institution. If shares or Rights have been delivered pursuant to the procedures for book-entry transfer section 2 describes, any notice of withdrawal must also specify the name and number of the account at the book-entry transfer facility to be credited with the withdrawn shares or Rights and otherwise comply with the book-entry transfer facility's procedures. Withdrawals of tenders of shares and Rights may not be rescinded, and any shares and Rights properly withdrawn will thereafter be deemed not validly tendered for purposes of the offer. Withdrawn shares and Rights may be retendered at any time prior to the expiration date by again following one of the procedures section 2 describes. Rights may not be withdrawn unless the related shares are also withdrawn. The Purchaser will decide, in its sole discretion, all questions as to the form and validity (including time of receipt) of notices of withdrawal, and each such decision will be final and binding. None of the Purchaser, Shell, the depositary, the information agent, the dealer manager or any other person will be under any duty to give notification of any defects or irregularities in any notice of withdrawal or incur any liability for failure to give any such notification. If the Purchaser provides a subsequent offering period following the offer, no withdrawal rights will apply to shares and Rights tendered during that subsequent offering period or to shares and Rights tendered in the offer and accepted for payment. SECTION 4. ACCEPTANCE FOR PAYMENT AND PAYMENT On the terms and subject to the conditions of the offer (including, if the offer is extended or amended, the terms and conditions of any such extension or amendment), the Purchaser will accept for payment and will pay promptly after the expiration date for all shares validly tendered prior to the expiration date and not properly withdrawn in accordance with section 3. The Purchaser will decide, in its sole discretion, all questions as to the satisfaction of such terms and conditions, and each such decision will be final and binding. See sections 1 and 14. The Purchaser expressly reserves the right, in its sole discretion, to delay acceptance for payment of or payment for shares in order to comply in whole or in part with any applicable law, including, without limitation, the HSR Act. It will effect any such delays in compliance with Exchange Act Rule 14e-1(c) (which relates to the obligation of a bidder to pay for or return tendered securities promptly after the termination or withdrawal of its offer). Shell, on behalf of Royal Dutch Petroleum Company, filed a Notification and Report Form with respect to the offer under the HSR Act on March 12, 2001. The waiting period under the HSR Act with respect to the offer will expire at 11:59 p.m., New York City time, on March 27, 2001 unless the Antitrust Division of the Department of Justice or the Federal Trade Commission extends the waiting period by requesting additional information or documentary material from Shell and its affiliates. If such a request is made, the waiting period will expire at 11:59 p.m., New York City time, on the 10th day after substantial compliance by Shell and its affiliates with that request. See section 15 for additional information concerning the HSR Act and the applicability of United States antitrust laws to the offer. In all cases, payment for shares accepted for payment pursuant to the offer will be made only after timely receipt by the depositary of (i) certificates for (or a timely book-entry confirmation with respect to) those shares and, if the Distribution Date occurs, certificates for (or a timely book-entry confirmation, if available, with respect to) the associated Rights (unless the Purchaser elects to make payment for those shares pending receipt of the certificates for, or a book-entry confirmation with respect to, those Rights as section 2 describes), (ii) a letter of transmittal (or a facsimile thereof), properly completed and duly executed, with any required signature 14 17 guarantees, or, in the case of a book-entry transfer, an agent's message, and (iii) any other documents required by the letter of transmittal. The per share consideration paid to any stockholder pursuant to the offer will be the highest per share consideration paid to any other stockholder pursuant to the offer. Accordingly, tendering stockholders may be paid at different times depending on when certificates for shares or book-entry confirmations with respect to shares are actually received by the depositary. For purposes of the offer, the Purchaser will be deemed to have accepted for payment, and thereby purchased, shares properly tendered to the Purchaser and not withdrawn as, if and when the Purchaser gives oral or written notice to the depositary of the Purchaser's acceptance for payment of those shares. Payment for shares accepted for payment pursuant to the offer will be made by deposit of the purchase price therefor with the depositary, which will act as an agent for tendering stockholders for the purpose of receiving payment from the Purchaser and transmitting payment to tendering stockholders. UNDER NO CIRCUMSTANCES WILL THE PURCHASER PAY INTEREST ON THE PURCHASE PRICE OF THE SHARES IT PURCHASES, REGARDLESS OF ANY EXTENSION OF THE OFFER OR ANY DELAY IN MAKING THAT PAYMENT. If the Purchaser is delayed in its acceptance for payment of or payment for shares or is unable to accept for payment or pay for shares pursuant to the offer for any reason, then, without prejudice to the Purchaser's rights under the offer (but subject to its compliance with Exchange Act Rule 14e-1(c)), the depositary may, nevertheless, on behalf of the Purchaser, retain tendered shares, and such shares may not be withdrawn except to the extent tendering stockholders are entitled to exercise, and duly exercise, the withdrawal rights section 3 describes. If any tendered shares are not purchased pursuant to the offer for any reason, certificates for those shares and the associated Rights will be returned, without expense to the tendering stockholder (or, in the case of shares or Rights delivered by book-entry transfer of those shares or Rights into the depositary's account at the book-entry transfer facility pursuant to the procedures section 2 describes, such shares or Rights will be credited to an account maintained at the book-entry transfer facility), as promptly as practicable after the expiration or termination of the offer. The Purchaser reserves the right to transfer or assign, in whole or from time to time in part, to Shell, or to one or more direct or indirect wholly owned subsidiaries of Shell, the right to purchase shares tendered pursuant to the offer, but any such transfer or assignment will not relieve the Purchaser of its obligations under the offer and will in no way prejudice the rights of tendering stockholders to receive payment for shares validly tendered and accepted for payment pursuant to the offer. SECTION 5. CERTAIN U.S. FEDERAL INCOME TAX CONSEQUENCES The receipt of cash pursuant to the offer or the proposed merger will be a taxable transaction for U.S. federal income tax purposes under the Internal Revenue Code of 1986 (the "Code"), and may also be a taxable transaction under applicable state, local or foreign income or other tax laws. Generally, for U.S. federal income tax purposes, a stockholder will recognize gain or loss equal to the difference between the amount of cash received by the stockholder pursuant to the offer or in the proposed merger and the aggregate tax basis in the shares (together with the Rights) tendered by the stockholder and purchased pursuant to the offer or converted into cash in the proposed merger, as the case may be. Gain or loss will be calculated separately for each block of shares and Rights tendered and purchased pursuant to the offer or converted into cash in the proposed merger, as the case may be. If shares (and associated Rights) are held by a stockholder as capital assets, gain or loss recognized by the stockholder will be capital gain or loss, which will be long-term capital gain or loss if the stockholder's holding period for the shares (and associated Rights) exceeds one year. In the case of a noncorporate stockholder, long-term capital gains will be eligible for a maximum federal income tax rate of 20 percent. In addition, under present law the ability to use capital losses to offset ordinary income is limited. The foregoing discussion may not be applicable with respect to (i) shares (and associated Rights) received on the exercise of employee stock options or otherwise as compensation or (ii) holders of shares (and associated Rights) who are subject to special tax treatment under the Code, such as non-U.S. persons, life insurance companies, tax-exempt organizations and financial institutions. In addition, the foregoing discussion may not apply to a holder of shares (and associated Rights) in light of individual circumstances, such as holding shares as a hedge or as part of a straddle or a hedging, constructive sale, integrated or other risk-reduction transaction. 15 18 STOCKHOLDERS SHOULD CONSULT THEIR OWN TAX ADVISORS REGARDING THE SPECIFIC TAX CONSEQUENCES TO THEM OF THE OFFER AND THE PROPOSED MERGER, INCLUDING THE APPLICABILITY AND EFFECT OF U.S. FEDERAL, STATE, LOCAL AND FOREIGN INCOME AND OTHER TAX LAWS IN THEIR PARTICULAR CIRCUMSTANCES. Backup Withholding. Certain noncorporate stockholders may be subject to backup withholding at a 31 percent rate on cash payments received in connection with the offer and the proposed merger. Backup withholding will not apply, however, to a stockholder who (i) furnishes a correct taxpayer identification number and certifies that it is not subject to backup withholding on the Substitute Internal Revenue Service Form W-9 or successor form the letter of transmittal includes, (ii) provides a certification of foreign status on Internal Revenue Service Form W-8 or successor form or (iii) is otherwise exempt from backup withholding. If a stockholder does not provide a correct taxpayer identification number, that stockholder may be subject to penalties imposed by the IRS. Any amount paid as backup withholding does not constitute an additional tax and will be creditable against a stockholder's U.S. federal income tax liability provided the required information is given to the IRS. If backup withholding results in an overpayment of tax, a refund can be obtained by the stockholder by filing a U.S. federal income tax return. Stockholders should consult their own tax advisors as to their qualification for exemption from withholding and the procedure for obtaining the exemption. SECTION 6. PRICE RANGE OF THE SHARES; DIVIDENDS ON THE SHARES The shares are traded on the NYSE under the symbol "BRR." The following table sets forth, for each of the periods indicated, the high and low sales prices per share as reported by the NYSE based on published financial sources.
HIGH LOW ------ ------ FISCAL YEAR ENDED DECEMBER 31, 1999: First Quarter............................................. $28.00 $15.44 Second Quarter............................................ $39.81 $24.25 Third Quarter............................................. $41.25 $32.25 Fourth Quarter............................................ $37.31 $23.06 FISCAL YEAR ENDED DECEMBER 31, 2000: First Quarter............................................. $34.44 $19.19 Second Quarter............................................ $41.63 $27.25 Third Quarter............................................. $39.19 $26.69 Fourth Quarter............................................ $59.81 $35.63 FISCAL YEAR ENDED DECEMBER 31, 2001: First Quarter (through March 6, 2001)..................... $58.19 $42.75
On February 28, 2001, the last trading day before Shell delivered to the Company its letter offering a price of $55.00 per share, the last sale price of the shares reported by the NYSE was $44.25. A $55.00 per share price represents an approximately 24 percent premium over the February 28, 2001 last sale price. On March 6, 2001, the last full trading day before the first public announcement of Shell's intention to commence the offer, the last reported sale price of the shares on the NYSE was $45.62 per share. On March 7, 2001, prior to the commencement of trading, Shell issued a press release announcing its proposal to acquire all outstanding shares of the Company for a price of $55.00 per share. On March 9, 2001, which was the last full trading day before commencement of the offer, the last reported sale price of the shares on the NYSE was $62.52 per share. STOCKHOLDERS ARE URGED TO OBTAIN A CURRENT MARKET PRICE FOR THE SHARES. According to the Company 1999 10-K, the Company has never paid any dividends on the shares. As of the date of this offer to purchase, the Rights are attached to the shares and are not traded separately. As a result, the sales prices per share set forth above are also the high and low sales prices per share and associated Right during those periods. On the occurrence of the Distribution Date, the Rights are to detach, and may trade separately, from the shares. See section 8. Unless the Company's board of directors redeems the Rights, amends the Rights Agreement to make the Rights inapplicable to the offer or delays the Distribution Date, the Purchaser believes that, as a result of Shell's announcement on March 7, 2001 of its intention to commence the offer, the Distribution Date may occur as early as March 21, 2001. On the basis of publicly available information, the Purchaser believes that, as of March 12, 2001, the Rights were not exercisable, certificates for Rights had not yet 16 19 been issued and the Rights were evidenced by the certificates for shares. IF THE RIGHTS BEGIN TO TRADE SEPARATELY FROM THE SHARES, STOCKHOLDERS SHOULD ALSO OBTAIN A CURRENT MARKET PRICE FOR THE RIGHTS. SECTION 7. EFFECT OF THE OFFER ON THE MARKET FOR THE SHARES; SHARE QUOTATION; EXCHANGE ACT REGISTRATION; MARGIN REGULATIONS Market for the Shares. The purchase of shares pursuant to the offer will reduce the number of holders of shares and the number of shares that might otherwise trade publicly and could adversely affect the liquidity and market value of the remaining shares the public holds. Share Quotation. Depending on the number of shares purchased pursuant to the offer, the shares may no longer meet the requirements for continued listing on the NYSE. In that event, the market for the shares could be adversely affected. According to the NYSE's published guidelines, the NYSE would consider delisting the outstanding shares if, among other things, (i) the number of publicly held shares (exclusive of holdings of officers, directors and members of their immediate families and other concentrated holdings of 10 percent or more) falls below 600,000, (ii) the number of record holders of 100 or more shares falls below 400 (or below 1,200 if the average monthly trading volume for the most recent 12 months is below 100,000 shares) or (iii) the aggregate market value of publicly held shares falls below $5 million. If the NYSE delists the shares, it is possible that the shares would trade on another securities exchange or in the over-the-counter market and that price quotations would be reported by other sources. The extent of the public market for the shares and the availability of those quotations would, however, depend on the number of the remaining holders of shares, the interests in maintaining a market in shares on the part of securities firms, the possible termination of registration of the shares under the Exchange Act, as described below, and other factors. The Purchaser cannot predict whether the reduction in the number of shares that might otherwise trade publicly would have an adverse or a beneficial effect on the market price for or marketability of the shares or whether it would cause future market prices to be greater or less than the offer price. Exchange Act Registration. The shares are currently registered under the Exchange Act. That registration may be terminated on application of the Company to the SEC if the shares are neither listed on a national securities exchange nor held by 300 or more holders of record. Termination of that registration would substantially reduce the information the Company would have to provide to its stockholders and to the SEC and would make various provisions of the Exchange Act no longer applicable to the Company, such as the short-swing profit recovery provisions of section 16(b) of the Exchange Act, the requirement of furnishing a proxy statement under section 14(a) of the Exchange Act in connection with stockholders' meetings and the related requirement of furnishing an annual report to stockholders and the requirements of Exchange Act Rule 13e-3 with respect to "going private" transactions. Furthermore, the ability of "affiliates" of the Company and persons holding "restricted securities" of the Company to dispose of those securities under Rule 144 or 144A under the Securities Act of 1933 may be impaired or eliminated. The Purchaser intends to seek to cause the Company to apply for termination of registration of the shares under the Exchange Act as soon after the completion of the offer as the requirements for that termination are met. According to publicly available information, the Rights are registered under the Exchange Act, but are attached to the shares and are not currently separately transferable. Unless the Company's board of directors redeems the Rights, amends the Rights Agreement to make the Rights inapplicable to the offer or delays the Distribution Date, the Purchaser believes that, as a result of Shell's announcement on March 7, 2001 of its intention to commence the offer, the Distribution Date may occur as early as March 21, 2001. On the basis of publicly available information, the Purchaser believes that, as of March 12, 2001, the Rights were not exercisable, certificates for Rights had not yet been issued and the Rights were evidenced by the certificates for shares. See section 8. According to the Company Form 8-A, as soon as possible after the occurrence of the Distribution Date, certificates for Rights will be sent to all holders of Rights and the Rights will become transferable apart from the shares. If the Distribution Date occurs and the Rights separate from the shares, the foregoing discussion with respect to the effect of the offer on Exchange Act registration would apply to the Rights in a similar manner. If registration of the shares is not terminated prior to the proposed merger, the shares will be delisted from all stock exchanges and the registration of the shares and Rights under the Exchange Act will be terminated following the consummation of the proposed merger. Margin Regulations. The shares are currently "margin securities" under the regulations of the Board of Governors of the Federal Reserve System, which has the effect, among others, of allowing brokers to extend credit on the collateral of the shares. Depending on factors similar to those described above regarding listing and 17 20 market quotations, it is possible that, following the offer, the shares would no longer constitute "margin securities" under the margin regulations of the Federal Reserve Board and therefore could no longer be used as collateral for brokers' loans. SECTION 8. CERTAIN INFORMATION CONCERNING THE COMPANY General. The following summary description of the Company does not purport to be complete and is qualified in its entirety by reference to the Company 1999 Form 10-K, the Company's Exchange Act reports and its press release issued March 1, 2001, including such other documents and all financial information (including any related notes) contained or incorporated therein. The Company 1999 Form 10-K and the Company's Exchange Act reports are available for inspection and copies thereof are obtainable in the manner set forth below under "-- Available Information." The information contained in the following summary specific to 1999 was excerpted from information in the Company 1999 10-K and the information contained in the summary specific to 2000 was excerpted from the Company's March 1, 2001 press release. The Company is a Delaware corporation with its executive offices at 1515 Arapahoe Street, Tower 3, Suite 1000, Denver, Colorado, and its telephone number at that address is (303)572-3900. The Company is an independent natural gas and crude oil exploration and production company that is also involved in natural gas gathering, marketing and trading activities. The Company's properties are primarily focused in the Rocky Mountain region of Colorado, Wyoming and Utah, the Mid-Continent region of Kansas and Oklahoma, and the Gulf of Mexico region of offshore Texas and Louisiana. At December 31, 1999, the Company's estimated proved reserves were 1,134 billion cubic feet of gas equivalent (Bcfe) and total production for 1999 was 103.5 Bcfe. At December 31, 2000, the Company's estimated proven reserves were 1,372 Bcfe, comprised of 1,323 billion cubic feet of natural gas and 8.1 million barrels of crude oil and condensate. The Rocky Mountain region, the focus of the Company's natural gas exploration and development activity, represented 88 percent of the Company's proven reserves in 2000, an increase from 81 percent in 1999. The Company added 356 Bcfe of proven reserves in 2000, replacing 302 percent of 2000 production of 118 Bcfe at an all-in finding cost of $0.82 per thousand cubic feet of gas equivalent. The Company's reserve life is 11.7 years at December 31, 2000. The Company's average daily production was 307 million cubic feet of natural gas and 2,385 barrels of oil for the year ended December 31, 2000. Natural gas production increased 18 percent in 2000 compared to 1999, while total production increased 14 percent in 2000 compared to 1999. In 2000, gas production accounted for 96 percent of the Company's total production on an energy equivalent basis. The Company concentrates its activities in core areas in which it has accumulated detailed geologic knowledge and developed significant management expertise: the Piceance Basin in northwestern Colorado, the Wind River Basin in central Wyoming, the Powder River Basin of northeastern Wyoming and the Raton Basin in southern Colorado. The Company also has significant interests in the Hugoton Embayment in southwestern Kansas, the Niobrara play in northeastern Colorado, and the Anadarko Basin in Oklahoma. The Company also owns and operates natural gas gathering assets, interests in pipelines and a natural gas processing plant. The Company markets all of its own natural gas and oil production from wells that it operates. In addition, the Company engages in natural gas marketing and trading activities, which involve purchasing from, and sales to, third parties. 18 21 Set forth below is certain selected financial information with respect to the Company excerpted from the information contained in the Company's press release dated March 1, 2001 and the Company 1999 10-K. More comprehensive financial information is included in the Company's press release and the Company 1999 10-K, and the following summary is qualified in its entirety by reference to such press release, the Company 1999 10-K, the Company 2000 10-Q and such other documents and all financial information (including any related notes) contained or incorporated by reference therein. The Company 1999 10-K is available for inspection and copies thereof are obtainable in the manner set forth below under "-- Available Information." BARRETT RESOURCES CORPORATION SELECTED HISTORICAL FINANCIAL INFORMATION (AMOUNTS IN THOUSANDS, EXCEPT PER SHARE INFORMATION)
YEAR ENDED DECEMBER 31, ----------------------------------- 2000 (UNAUDITED) 1999 1998 ----------- --------- --------- INCOME AND CASH FLOW DATA Net income........................................ $ 27,674 $ 20,828 $(93,743) Net income per share and common share equivalent-diluted.............................. 0.83 0.64 (2.95) Cash flows from operations........................ 178,510 112,230 116,970 BALANCE SHEET DATA Total assets...................................... $1,253,833 $884,301 $838,879 Total long-term debt(1)........................... 398,000 350,000 325,000 Stockholders' equity.............................. 412,792 363,648 333,252
- --------------- (1) Includes long-term debt and long-term bonds payable according to the Company's press release issued March 1, 2001 and the Company 1999 10-K. Available Information. The Company is subject to the informational requirements of the Exchange Act and, in accordance therewith, is required to file reports relating to its business, financial condition and other matters. Information as of particular dates concerning the Company's directors and officers, their remuneration, stock options and other matters, the principal holders of the Company's securities and any material interest of those persons in transactions with the Company is required to be disclosed in the Company's proxy statements distributed to the Company's stockholders and filed with the SEC. That information should be available for inspection at the public reference facilities of the SEC at 450 Fifth Street, N.W., Washington, DC 20549, and at the regional offices of the SEC located at Seven World Trade Center, 13th Floor, New York, NY 10048 and Citicorp Center, 500 West Madison Street (Suite 1400), Chicago, IL 60661. Copies of that information should be obtainable, by mail, upon payment of the SEC's customary charges, by writing to the SEC's principal office at 450 Fifth Street, N.W., Washington, DC 20549. The SEC maintains a web site that contains reports, proxy and information statements and other information regarding registrants that file electronically with it. Those reports, proxy and information statements and other information may be found on the SEC's web site address, http://www.sec.gov. That material should also be available for inspection at the offices of the NYSE at 20 Broad Street, New York, New York 10005. Except as otherwise stated herein, the information concerning the Company contained herein has been taken from or based on publicly available documents on file with the SEC and other publicly available information. Although the Purchaser and Shell do not have any knowledge that any such information is untrue, neither the Purchaser nor Shell takes any responsibility for the accuracy or completeness of that information or for any failure by the Company to disclose events that may have occurred and may affect the significance or accuracy of any such information. The Rights. Set forth below is a summary description of the Rights and the Rights Agreement derived from the Company Form 8-A and the Company 10-K Exhibit. On August 4, 1997, the board of directors of the Company declared a dividend distribution of one Right for each outstanding share of common stock, par value $.01 per share, of the Company, payable to the holders of record of the common stock as of the close of business on August 20, 1997. On February 25, 1999, the board of 19 22 directors of the Company adopted certain amendments to the terms of the Rights. Except as set forth below, each Right, when it becomes exercisable, entitles the registered holder to purchase from the Company one one-thousandth of a share of a series of preferred stock, designated as Series A Junior Participating Preferred Stock, par value $.001 per share, at a price of $150.00 per one one-thousandth of a share, subject to adjustment. Until the earlier to occur of (i) a public announcement that, without the prior consent of the board of directors of the Company, a person or group, including any affiliates or associates of such person or group (an "Acquiring Person"), has acquired, or obtained the right to acquire, beneficial ownership of 15 percent or more of the outstanding common stock (the "Stock Acquisition Date") or (ii) 10 business days (or such later date as the board may determine) following the commencement of, or announcement of an intention (which is not subsequently withdrawn) to make, a tender offer or exchange offer that would result in any person or group (and related persons) having beneficial ownership of 15 percent or more of the outstanding common stock without the prior consent of the board of directors (the earlier of such dates being called the "Distribution Date"), the Rights will be attached to all common stock certificates and will be evidenced by the common stock certificates. The Rights Agreement provides that, until the Distribution Date, the Rights will be transferred with and only with the common stock certificate. Until the Distribution Date (or earlier redemption or expiration of the Rights), the surrender for transfer of any common stock certificates will also constitute the transfer of the Rights associated with the common stock represented by such certificate. As soon as practicable following the Distribution Date, separate certificates evidencing the Rights ("Rights Certificates") will be mailed to holders of record of the common stock as of the close of business on the Distribution Date, and the separate Rights certificates alone will evidence the Rights. The Rights are not exercisable until the Distribution Date. The Rights will expire on August 4, 2007, unless earlier redeemed by the Company as described below. Unless the Company's board of directors redeems the Rights, amends the Rights Agreement to make the Rights inapplicable to the offer or delays the Distribution Date, the Purchaser believes that, as a result of Shell's announcement on March 7, 2001 of its intention to commence the offer, the Distribution Date may occur as early as March 21, 2001. On the basis of publicly available information, the Purchaser believes that, as of March 12, 2001, the Rights were not exercisable, certificates for Rights had not yet been issued and the Rights were evidenced by the certificates for shares. The preferred stock purchasable upon exercise of the Rights will be nonredeemable and junior to any other series of preferred stock the Company may issue (unless otherwise provided in the terms of such stock). Each share of preferred stock will have a preferential quarterly dividend in an amount equal to the greater of $10.00 or 1,000 times the dividend declared on each share of the Company common stock. In the event of liquidation, the holders of preferred stock will receive a preferred liquidation payment per share equal to the greater of $5,000 or 1,000 times the payment made per share of common stock. Each share of preferred stock will have one vote, voting together with the common stock. In the event of any merger, consolidation or other transaction in which shares of common stock are exchanged, each share of preferred stock will be entitled to receive 1,000 times the amount and type of consideration received per share of common stock. The rights of the preferred stock as to dividends, liquidation and voting, and in the event of mergers and consolidations, are protected by customary anti-dilution provisions. Fractional shares of preferred stock in integral multiples of one one-thousandth of a share of preferred stock will be issuable; however, the Company may elect to distribute depositary receipts in lieu of such fractional shares. In lieu of fractional shares other than fractions that are multiples of one one-thousandth of a share, an adjustment in cash will be made based on the market price of the preferred stock on the last trading date prior to the date of exercise. In the event that any person becomes an Acquiring Person, each holder of a Right generally will thereafter have the right for a 60-day period after the later of the date of such event or the effectiveness of an appropriate registration statement (or such other longer period set by the board of directors) to receive upon exercise of the Right that number of units of one one-thousandth of a share of preferred stock (or, under certain circumstances, common stock or other securities) having an average market value during a specified time period (immediately prior to the occurrence of a person becoming an Acquiring Person) of two times the exercise price of the Right (such right being called the "Subscription Right"). Notwithstanding the foregoing, following the occurrence of a person becoming an Acquiring Person, all Rights that are, or (under certain circumstances specified in the Rights Agreement) were, beneficially owned by the Acquiring Person or any affiliate or associate thereof will be null and void. 20 23 In the event that, at any time following the Stock Acquisition Date, the Company is acquired in a merger or other business combination transaction or 50 percent or more of the Company's assets or earning power are sold (in one transaction or a series of transactions), proper provision shall be made so that each holder of a Right (except a Right voided as set forth above) shall thereafter have the right to receive, upon the exercise thereof at the then current exercise price of the Right, that number of shares of common stock of the acquiring company (or, in the event there is more than one acquiring company, the acquiring company receiving the greatest portion of the assets or earning power transferred) which at the time of such transaction would have a market value of two times the exercise price of the Right (such right being called the "Merger Right"). The holder of a Right will continue to have the Merger Right whether or not such holder exercises the Subscription Right. The purchase price payable, the number of Rights and the number of units of one one-thousandth of a share of preferred stock or shares of common stock or other securities or property issuable, upon exercise of the Rights are subject to adjustment from time to time to prevent dilution (i) in the event of a stock dividend on, or a subdivision, combination or reclassification of the preferred stock, (ii) upon the grant to holders of the preferred stock of certain rights or warrants to subscribe for preferred stock, certain convertible securities or securities having the same or more favorable rights, privileges and preferences as the preferred stock at less than the current market price of the preferred stock or (iii) upon the distribution to holders of the preferred stock of evidences of indebtedness or assets (excluding regular quarterly cash dividends out of earnings or retained earnings and dividends payable in common stock) or of subscription rights or warrants (other than those referred to above). With certain exceptions, no adjustment in the purchase price will be required until cumulative adjustments require an adjustment of at least 1 percent in such purchase price. No fractional shares will be issued and, in lieu thereof, an adjustment in cash will be made based on the market price of the preferred stock on the last trading date prior to the date of exercise. The number of outstanding Rights associated with each share of common stock and the voting and economic rights of each one one-thousandth of a share of preferred stock issuable upon exercise of each Right are also subject to adjustment in the event of a stock split of the common stock or a stock dividend on the common stock payable in common stock or subdivisions, consolidations or combinations of the common stock occurring, in any such case, prior to the Distribution Date. At any time prior to the earlier to occur of (i) the close of business on the Stock Acquisition Date or (ii) the expiration of the Rights, the board of directors of Company may redeem the Rights in whole, but not in part, at a price of $.001 per Right (the "Redemption Price"), which redemption shall be effective upon the action of the board of directors. Additionally, following the Stock Acquisition Date and the expiration of the period during which the Subscription Right is exercisable, the Company may redeem the then outstanding Rights in whole, but not in part, at the Redemption Price, provided that such redemption is in connection with a merger or other business combination transaction or series of transactions involving the Company in which all holders of common stock are treated alike but not involving an Acquiring Person (or any person who was an Acquiring Person) or its affiliates or associates. Upon the effective date of the redemption of the Rights, the right to exercise the Rights will terminate and the only right of the holders of Rights will be to receive the Redemption Price. Until a Right is exercised, the holder thereof, as such, will have no rights as a stockholder of the Company, including, without limitation, the right to vote or to receive dividends. Except as set forth above, the terms of the Rights may be amended by the board of directors of the Company, (i) prior to the Distribution Date in any manner, and (ii) on or after the Distribution Date to cure any ambiguity, to correct or supplement any provision of the Rights Agreement which may be defective or inconsistent with any other provisions, or in any manner not adversely affecting the interests of the holders of the Rights (other than any Acquiring Person), or, subject to certain limitations, to shorten or lengthen any time period under the Rights Agreement. The foregoing summary description of the Rights does not purport to be complete and is qualified in its entirety by reference to the Rights Agreement and other documents included in the Company Form 8-A and the Company 10-K Exhibit. The Company Form 8-A and the Company 10-K Exhibit should be available for inspection and copies thereof should be obtainable in the manner set forth below under -- "Available Information." BY THE RIGHTS CONDITION, THE OFFER IS CONDITIONED ON THE RIGHTS HAVING BEEN REDEEMED BY THE BOARD OF DIRECTORS OF THE COMPANY OR THE PURCHASER BEING SATISFIED, IN ITS SOLE DISCRETION, THAT THE RIGHTS HAVE BEEN INVALIDATED OR ARE OTHERWISE INAPPLICABLE TO THE OFFER AND THE PROPOSED MERGER. 21 24 UNLESS THE RIGHTS CONDITION IS SATISFIED, STOCKHOLDERS WILL BE REQUIRED TO TENDER ONE RIGHT FOR EACH SHARE TENDERED IN ORDER TO EFFECT A VALID TENDER OF SHARES IN ACCORDANCE WITH THE PROCEDURES SECTION 2 SETS FORTH. UNLESS THE DISTRIBUTION DATE OCCURS, A TENDER OF SHARES WILL ALSO CONSTITUTE A TENDER OF THE ASSOCIATED RIGHTS. The Purchaser believes that under the circumstances of the offer, and under applicable law, the board of directors of the Company has a fiduciary obligation to redeem the Rights (or amend the Rights Agreement to make the Rights inapplicable to the offer and the proposed merger), and the Purchaser is hereby requesting that the Company's board of directors do so. However, there can be no assurance that the board of directors of the Company will redeem the Rights (or amend the Rights Agreement). By means of the Consent Solicitation, the Purchaser expects to seek to remove without cause the members of the current board of directors of the Company and to replace them with the Nominees. If elected to the board, the Nominees may redeem the Rights (or amend the Rights Agreement to make the Rights inapplicable to the transaction), thereby satisfying the Rights Condition. SECTION 9. CERTAIN INFORMATION CONCERNING THE PURCHASER AND ITS AFFILIATES General. The Purchaser, a Delaware corporation, was formed to acquire the Company and has not conducted any unrelated activities since its organization. Its principal office is located at P.O. Box 8985, Wilmington, Delaware 19899 and its telephone number is (713) 241-6161. Shell indirectly owns all outstanding shares of capital stock of the Purchaser. Shell is a Delaware corporation with its principal offices located at One Shell Plaza, 910 Louisiana, Houston, Texas 77002; and its telephone number is (713) 241-6161. Shell is wholly owned by Shell Petroleum Inc., a Delaware corporation, whose shares are directly or indirectly owned 60 percent by Royal Dutch Petroleum Company, The Hague, The Netherlands, and 40 percent by The "Shell" Transport and Trading Company, p.l.c., London, England. Royal Dutch Petroleum Company and The "Shell" Transport and Trading Company, p.l.c., are holding companies which together directly or indirectly own securities of companies of the Royal Dutch/ Shell Group of Companies, the members of which are severally engaged throughout the greater part of the world in all of the principal aspects of the oil and natural gas industry. They also have substantial interests in chemicals and additional interests in power generation, renewable resources (chiefly in forestry and solar energy), coal and other businesses. Shell and its subsidiaries and entities in which it holds ownership interests are engaged, principally in the United States, in the exploration for, and development, production, purchase, transportation and marketing of, crude and natural gas, and the purchase, manufacture, transportation and marketing of oil and chemical products. In addition, subsidiaries of Shell are engaged in the exploration for, and production of, crude oil and natural gas outside the United States on a limited and selected basis. Shell's oil and gas exploration and production operating segment, including its ownership interest in companies accounted for using the equity method of accounting, is engaged principally in the United States in the exploration for and production of crude oil and natural gas. The Gulf of Mexico, California and Texas are the principal areas of activity. Except as described in this offer to purchase, including the schedules hereto, (i) none of the Purchaser, Shell or, to the best of their knowledge, any of the persons listed in Schedule I to this offer to purchase, or any associate or majority-owned subsidiary of Shell or the Purchaser or, to the best of their knowledge, any associate or majority-owned subsidiary of any of the persons listed in Schedule I to this offer to purchase, beneficially owns or has any right to acquire, directly or indirectly, any equity securities of the Company, and (ii) none of the Purchaser, Shell or, to the best of their knowledge, any of the persons listed in Schedule I to this offer to purchase has effected any transaction in such equity securities during the past 60 days. The Purchaser and Shell disclaim beneficial ownership of any shares owned by any pension plans of Shell or the Purchaser or any pension plans of any associate or majority-owned subsidiary of the Purchaser or Shell. Except as described in this offer to purchase, none of the Purchaser, Shell or, to the best of their knowledge, any of the persons listed in Schedule I to this offer to purchase has any contract, arrangement, understanding or relationship with any other person with respect to any securities of the Company, including, but not limited to, any contract, arrangement, understanding or relationship concerning the transfer or voting of such securities, joint ventures, loan or option arrangements, puts or calls, guarantees of loans, guarantees against loss or the giving 22 25 or withholding of proxies. Except as set forth in this offer to purchase, during the past two years, none of the Purchaser, Shell or, to the best of their knowledge, any of the persons listed on Schedule I hereto has had any business relationship or transaction with the Company or any of its executive officers, directors or affiliates that is required to be reported under the rules and regulations of the SEC applicable to the offer. Except as set forth in this offer to purchase, during the past two years, there have been no contacts, negotiations or transactions between any of the Purchaser, Shell or any of their subsidiaries or, to the best knowledge of the Purchaser and Shell, any of the persons listed in Schedule I to this offer to purchase, on the one hand, and the Company or its affiliates, on the other hand, concerning a merger, consolidation or acquisition, tender offer or other acquisition of securities, an election of directors or a sale or other transfer of a material amount of assets. Available Information. Shell is no longer subject to the informational requirements of the Exchange Act, and has ceased to file reports and other information with the SEC. However, Royal Dutch Petroleum Company and The "Shell" Transport and Trading Company, p.l.c. are each subject to the informational requirements of the Exchange Act and, in accordance therewith, are required to file annual reports on Form 20-F with the SEC relating to their business, financial condition and other matters. Such reports and other information should be available for inspection at the public reference facilities of the SEC at 450 Fifth Street, NW, Washington, DC 20549, and at the regional offices of the SEC located at Seven World Trade Center, 13th Floor, New York, NY 10048 and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, IL 60661. Copies of such information should be obtainable, by mail, on payment of the SEC's customary charges, by writing to the SEC's principal office at 450 Fifth Street, NW, Washington, DC 20549. SECTION 10. SOURCE AND AMOUNT OF FUNDS The offer is not conditioned on any financing arrangements. The Purchaser estimates that the total amount of funds required to purchase pursuant to the offer the number of shares that are outstanding on a fully diluted basis and to pay fees and expenses related to the offer and the Consent Solicitation will be approximately $1.98 billion. The Purchaser plans to obtain all funds needed for the offer through a capital contribution or intercompany loan which will be made by Shell to the Purchaser at the time the Purchaser accepts for payment shares tendered pursuant to the offer. Shell intends to use cash on hand or available to it to make this capital contribution or intercompany loan. As of December 31, 2000, Shell and its consolidated subsidiaries had total assets in excess of $30 billion. SECTION 11. CONTACTS AND TRANSACTIONS WITH THE COMPANY; BACKGROUND OF THE OFFER On February 23, 2001, at the request of Shell, a representative of Lehman Brothers, Shell's financial advisor, telephoned Mr. Peter A. Dea, the chairman and chief executive officer of the Company, to discuss a potential meeting between Mr. Dea and Mr. Walter van de Vijver, the president and chief executive officer of Shell Exploration and Production Company. On February 26, 2001, Mr. Dea returned the call and the Lehman Brothers representative expressed Mr. van de Vijver's interest in meeting with Mr. Dea to discuss a possible business arrangement between Shell and the Company. Mr. Dea responded that he was not interested in meeting with Shell. 23 26 On March 1, 2001, Mr. van de Vijver telephoned Mr. Dea to propose Shell's acquisition of the Company at a price of $55.00 per share in cash. Mr. Dea expressed his thanks for Shell's interest but further responded that the Company had no interest beyond executing its existing strategy. Mr. Dea indicated that he would notify the Company's board of directors of Shell's offer. Thereafter, Mr. van de Vijver confirmed Shell's proposal by delivering the following letter to Mr. Dea: March 1, 2001 Board of Directors Barrett Resources Corporation 1515 Arapahoe Street Tower 3, Suite 1000 Denver, CO 80202 Attention: Peter A. Dea, Chairman and Chief Executive Officer Dear Peter: I enjoyed our telephone conversation this morning. Thanks for your complimentary remarks about Shell. As I said to you, Shell has a strong interest in establishing a presence in the Rockies, and we envision Barrett serving as the cornerstone of this new growth oriented core area. We are committed to pursuing a transaction with Barrett. While we would prefer to negotiate and announce a definitive agreement between our companies in the very near term, we are prepared to go forward unilaterally by taking our proposal directly to your shareholders. If you are prepared to negotiate, we and our advisors are ready to meet with you promptly with a goal of entering into a merger agreement with Barrett that would provide for a two step acquisition transaction. In the first step, a Shell subsidiary would make a tender offer for all outstanding Barrett shares at a price of $55.00 per share in cash. The tender offer would be subject to a minimum tender condition of at least 50.1% of the outstanding shares. In the second step, our acquisition subsidiary and Barrett would merge in a transaction in which all remaining Barrett shares would be acquired for the same cash price per share of $55.00. We contemplate that all currently outstanding Barrett employee stock options would be entitled to cash payments based on the spread between the acquisition price offered and the exercise price of the options. The merger agreement would not be conditioned upon engaging in any due diligence but would be subject to customary conditions, including, among other things, the receipt of required regulatory approvals, the satisfaction of a minimum share tender condition in the tender offer and the removal of your anti-takeover defenses. You are hereby advised that we have sufficient cash on hand to complete the transaction. We are eager to move ahead and look forward to your prompt response to our offer to negotiate a merger proposal. If, on the other hand, you are unwilling to engage in substantive negotiations, we intend to commence the cash tender offer outlined above within the next several days. Shell has devoted significant resources to studying the Rocky Mountain region, and we share your enthusiasm for this area. Barrett has built a strong position in the area and Barrett's employees have been a critical part of the region's development. Given Shell's commitment to this region, it is our strong desire to retain substantially all of Barrett's employees. Since we currently have no physical E&P presence in the region, we would also expect to make Denver our new base of operations for expansion and growth in the Rockies. We believe that our desire to retain Barrett employees will help minimize much of the personnel disruption that often results from acquisition transactions. We believe that with Barrett's people and Shell's technology and capital strength, we can continue to grow reserves and production. We believe that our fully funded cash offer at the attractive price we have proposed would be well received by your shareholders. We hope that your employees will be excited about the prospect of working with Shell to continue to develop the region. We hope you share our enthusiasm for this transaction, and I would appreciate hearing from you by the close of business on Monday, March 5, 2001 with your response. Very truly yours, /s/ Walter van de Vijver Walter van de Vijver President and CEO 24 27 On March 5, 2001, Mr. van de Vijver attempted to telephone Mr. Dea to offer to meet to discuss Shell's proposal to acquire the Company. In response, Mr. Dea sent the following letter to Mr. van de Vijver: March 5, 2001 Shell Exploration & Production Co. One Shell Plaza P.O. Box 2463 Houston, Texas 77252-2463 Attention: Walter van de Vijver, President and CEO Dear Walter: We received your March 1st letter and proposal for a transaction. We have discussed your letter over the weekend in a telephonic meeting of our Board and plan to discuss it further at our regularly scheduled Board meetings on March 7 and 8. A matter of this significance merits very careful consideration by our Board. We expect to respond to your letter no later than the close of business on Friday, March 9. Very truly yours, /s/ Peter A. Dea Peter A. Dea Chairman of the Board and Chief Executive Officer After receiving Mr. Dea's letter, on March 5, 2001, Mr. van de Vijver telephoned Mr. Dea to again offer to meet to discuss Shell's proposal to acquire the Company set forth in his March 1 letter. Mr. Dea informed Mr. van de Vijver that he would discuss a possible meeting with other directors of the Company and would telephone Mr. van de Vijver on the morning of March 6, 2001 with a response. On March 6, 2001, Mr. Dea telephoned Mr. van de Vijver to state that he was not interested in a meeting at that time and that the Company would consider Shell's offer at its regularly scheduled board meetings on March 7-8. On March 7, 2001, Shell released the text of its March 1, 2001 letter and issued the following press release: SHELL OIL COMPANY ANNOUNCES PROPOSAL TO ACQUIRE BARRETT RESOURCES FOR $55 PER SHARE IN CASH HOUSTON (MARCH 7, 2001) -- Shell Oil Company (Shell), a wholly owned member of the Royal Dutch/ Shell Group, today announced that on March 1, 2001, it made a proposal to the Board of Directors of Barrett Resources Corporation (NYSE: BRR) to acquire all of the outstanding shares of Barrett common stock at a price of $55.00 per share in cash. The price offered represents a 24 percent premium over the Feb. 28, 2001, closing price of $44.25, the day before Shell first made its acquisition proposal. This offer represents an aggregate purchase price of approximately $1.8 billion plus the assumption of Barrett's debt of approximately $400 million. Barrett has advised Shell that the Barrett Board of Directors will consider the proposal at its regularly scheduled meeting on March 7 and 8, 2001, and will respond to Shell's proposal no later than Friday, March 9, 2001. "Shell appreciates the seriousness with which Barrett's Board is approaching our proposal, and we are hopeful that the Barrett Board will respond favorably," said Mr. Walter van de Vijver, president and CEO of Shell Exploration & Production Company, the exploration and production arm of Shell Oil Company. "We are standing by and are ready to negotiate a merger agreement promptly so that Barrett's shareholders can consider our $55.00 per share cash offer. However, absent a positive response from Barrett's Board, Shell intends to commence a fully funded, all cash tender offer for all outstanding Barrett shares. "The acquisition of Barrett will give Shell an immediate material presence in the Rocky Mountain region, the second largest natural gas basin in the U.S., as well as significant additional natural gas production and reserves," said Mr. van 25 28 de Vijver. "This transaction will strengthen and diversify our asset portfolio and will enhance Shell's natural gas position with tangible growth opportunities outside our existing core areas. We also look forward to adding substantially all of Barrett's talented employee base to the Shell team." Shell's tender offer would be conditioned on, among other things, the acquisition of at least a majority of the outstanding Barrett shares. The offer would not be contingent on the receipt of financing. The terms and conditions of the offer would be set forth in tender offer materials which Shell would file with the Securities and Exchange Commission (SEC) and mail to Barrett's shareholders. In conjunction with any such tender offer, Shell would also file preliminary consent solicitation materials with the SEC. Also, on March 7, 2001, Mr. van de Vijver delivered the following letter to Mr. Dea: March 7, 2001 Mr. Peter A. Dea Chairman and Chief Executive Officer Board of Directors Barrett Resources Corporation 1515 Arapahoe Street Tower 3, Suite 1000 Denver, CO 80202 Dear Peter: I wanted you to know that this morning we are issuing a press release announcing Shell's proposal to acquire Barrett Resources under the terms we discussed. While we are gratified that your board will give careful consideration to our proposal today, to the extent you may also be considering other alternative transactions, we felt the market and your shareholders should be aware of our commitment to making this acquisition. Nonetheless, I am anxiously awaiting the board's response to our proposal, and I want you to know that my advisors and I can meet with you and your advisors on very short notice any time during the next two or three days. In connection with your board meeting, I urge your board to take action to remove the impediments to our acquisition proposal that are presently contained in Barrett's poison pill rights plan and in Barrett's bylaws. This action would insure that Barrett's stockholders would be able to consider and respond to our offer themselves. I also wanted to inform you that, as a Barrett shareholder, Shell Oil Company will today commence a declaratory judgment action in Delaware Chancery Court seeking invalidation of certain provisions of Barrett's bylaws which could be used as impediments to our proposal. While we hope that the Barrett board will act to remove the invalid bylaw provisions that purport to limit shareholder rights, out of an abundance of caution, we have proceeded with the suit. As I have said before, we prefer to proceed on a negotiated basis, but if your board chooses a different course, we intend to take our proposal directly to the Barrett stockholders. I look forward to talking with you promptly after your board meeting. Very truly yours, /s/ Walter van de Vijver Walter van de Vijver President and CEO 26 29 On March 8, 2001, Mr. Dea delivered the following letter to Mr. van de Vijver: March 8, 2001 Mr. Walter van de Vijver President and Chief Executive Officer Shell Exploration & Production Company One Shell Plaza P.O. Box 2463 Houston, Texas 77252-2463 Dear Walter: The Board of Directors of Barrett Resources Corporation has fully considered and rejected Shell's proposal to acquire Barrett. As reflected in the attached press release, which is being concurrently issued, we are initiating a process to maximize shareholder value. Because of your stated desire to negotiate a friendly acquisition of Barrett, we invite you to participate in the process. Our financial advisors, Goldman Sachs and Petrie Parkman, will be contacting Lehman Brothers to encourage your participation. Sincerely yours, /s/ Peter A. Dea Peter A. Dea Chairman and Chief Executive Officer Also on March 8, 2001, the Company released the text of its March 8, 2001 letter and issued the following press release: BARRETT RESOURCES TO PURSUE STRATEGIC ALTERNATIVES, INCLUDING A POSSIBLE SALE OF THE COMPANY DENVER, (MARCH 8, 2001) -- Barrett Resources Corporation (NYSE: BRR) today announced that its Board of Directors has reviewed, considered and rejected Shell Oil Company's unsolicited proposal to acquire the Company. The Board has determined that, in light of the Shell proposal and relevant industry conditions, it is appropriate to take all necessary steps to maximize shareholder value. Accordingly, it has authorized management to pursue strategic alternatives, including seeking proposals from a number of qualified parties, rather than commencing negotiations solely with Shell under artificial deadlines that only serve Shell's interests. The process initiated by the Board will be designed to facilitate a full appreciation of the value of Barrett's assets and to create a competitive situation in which Shell is being invited to participate along with others. Barrett noted that Shell's proposal was based on publicly available information without the benefit of any due diligence with the Company. Barrett believes that, in properly valuing the Company, Shell and other potential parties would find it highly important to consider confidential, nonpublic information regarding the Company's focused natural gas potential in the Rocky Mountain region. The Company's management and advisors will promptly assemble materials to be shared with qualified parties, subject to an appropriate confidentiality agreement. These participants will be given access to a data room and provided with other detailed due diligence information. Final proposals will be requested by Barrett after the participants have had an opportunity to conduct their due diligence. The Company reserves the right to modify this process at any time. No assurance can be given that a sale of the Company will occur, or on what terms. "We are inviting Shell to participate in this process," said Peter A. Dea, Chairman and Chief Executive Officer of Barrett. "If Shell attempts to bypass this orderly process designed to maximize shareholder value, the Board will consider that action in due course. In the meantime, the Board urges shareholders to take no action with respect to their holdings of the Company." 27 30 Goldman, Sachs & Co. and Petrie Parkman & Co. are acting as the Company's financial advisors and Sidley & Austin is acting as the Company's legal counsel. Following the receipt of the Company's press release and letter on March 8, 2001, a representative of Goldman, Sachs & Co. ("Goldman Sachs"), the Company's financial advisor, and a representative of Lehman Brothers had a telephone conversation in which they discussed the Company's rejection of Shell's proposal and the auction process announced in the Company's press release. The Goldman Sachs representative indicated that the Company's board of directors is committed to reviewing the Company's strategic alternatives but that the process will not necessarily result in a sale of the Company. In that conversation, the Goldman Sachs representative indicated that the process announced in the press release would probably not result in any negotiations respecting any transaction for at least 60 days. The Lehman Brothers representative requested, on behalf of the Purchaser and Shell, a copy of the Company's confidentiality agreement for its proposed auction process in connection with the review of the strategic options available to Shell, and a copy was provided. On Monday, March 12, Shell issued the following press release and commenced the offer: SHELL OIL COMPANY COMMENCES TENDER OFFER FOR BARRETT RESOURCES AT $55 PER SHARE IN CASH HOUSTON (MARCH 12, 2001) -- Shell Oil Company (Shell), a wholly-owned member of the Royal Dutch/Shell Group, today announced that it has commenced a tender offer for all outstanding shares of Barrett Resources Corporation (Barrett) at $55 per share in cash. The offer price for the Common Stock represents a 24 percent premium over Barrett's market price of $44.25 per share on Feb. 28, 2001, the last trading day prior to Shell's initial acquisition proposal. "We consider it a positive sign that Peter Dea and Barrett's Board of Directors have said they are considering strategic alternatives, but it is not clear that they are committed to the sale of the company," said Walter van de Vijver, president and CEO of Shell Exploration & Production Company, the exploration and production arm of Shell Oil Company. "That is why Shell has chosen to take its offer directly to the Barrett shareholders rather than participate in the auction process proposed by Barrett's Board. We continue to believe that the best choice is to accept our fully funded cash offer. "We also note that Barrett's board has not said that our $55 per share offer is inadequate, so we assume that they and their advisors have concluded that our offer is in an appropriate range," he continued. "We have decided to make our tender offer available to shareholders today because we continue to believe that our fully funded cash offer represents a full and fair value for the company. "We are concerned, as their shareholders also may be, that the prolonged auction process could be a distraction to Barrett's employees and have an adverse impact on their ability to effectively operate the business. Under the auction process Barrett has established, it could take over two months before Barrett shareholders know whether or not they have any further options," Mr. van de Vijver added. Shell's tender offer is conditioned upon, among other things, the acquisition of at least a majority of the outstanding shares. The tender offer and withdrawal rights will expire at midnight (EDT) on April 6, 2001, unless extended. The offer is not contingent on the receipt of financing. The terms and conditions of the offer will be set forth in tender offer materials being filed today with the Securities and Exchange Commission to be mailed promptly to Barrett shareholders. Lehman Brothers Inc. is acting as Dealer Manager for the Shell offer, and Morrow & Co., Inc. is acting as Information Agent. SECTION 12. PURPOSE OF THE OFFER; PLANS FOR THE COMPANY Purpose. The purpose of the offer is to enable Shell to acquire control of, and the entire equity interest in, the Company. The offer, as the first step in Shell's acquisition of the Company, is intended to facilitate the acquisition of all the shares. Shell currently intends to effect the proposed merger, as soon as practicable following consummation of the offer. The Company would become an indirect wholly owned subsidiary of Shell as a result of this merger. When the proposed merger takes place, each then outstanding share (other than shares Shell indirectly owns through the Purchaser or any other of its direct or indirect wholly owned subsidiaries, shares the Company holds as its treasury shares and shares of stockholders who perfect available appraisal rights under the DGCL) would convert into the right to receive an amount in cash equal to the price per share the Purchaser has paid pursuant to the offer. 28 31 Except in the case of a "short-form" merger, the DGCL will require the approval of the Company's board of directors and the affirmative vote of holders of a majority of the outstanding shares (including any shares owned by the Purchaser) in order to effect the proposed merger. If the Purchaser acquires, through the offer or otherwise, at least a majority of the outstanding shares, which would be the case if the Minimum Tender Condition were satisfied and the Purchaser were to accept for payment shares tendered pursuant to the offer, it would have sufficient voting power to effect the proposed merger without the vote of any other stockholder of the Company. The DGCL provides that if one corporation owns at least 90 percent of the outstanding shares of each class of another corporation, the two corporations may merge in a "short-form" merger without a vote of the subsidiary's minority stockholders. Accordingly, if, as a result of the offer or otherwise, the Purchaser acquires at least 90 percent of the outstanding shares, the Purchaser could, and intends to, effect the proposed merger as a "short-form" merger without prior notice to, or any action by, any other stockholder of the Company. If the proposed merger does not take place, the Purchaser or an affiliate of the Purchaser may, either immediately following the consummation or termination of the offer (whether or not the Purchaser purchases shares under the offer), or from time to time thereafter, seek to acquire additional shares through open market purchases, privately negotiated transactions, a tender offer or exchange offer or otherwise, on such terms and at such prices as it may determine, which may be more or less than the price the Purchaser is offering to pay under the offer. The timing of the consummation of the offer and the proposed merger will depend on a variety of factors and legal requirements, the actions of the Company's board of directors, the number of shares, if any, the Purchaser acquires under the offer and whether the conditions to the offer have been satisfied or waived. Shell can give no assurance that the proposed merger will be consummated or as to the timing of the proposed merger if it is consummated. In the Consent Solicitation, the Company will be seeking written consents from stockholders of the Company for the following purposes: (i) to remove without cause all members of the board of directors of the Company who are in office immediately prior to that removal and (ii) to elect Messrs. Francis L. Durand, R. W. Leftwich and J. Hugh Roff Jr. (the "Nominees") to serve as directors of the Company. The principal reason the Purchaser is seeking to elect the Nominees to the Company's board is their willingness to consider, consistent with their fulfillment of their fiduciary duties under Delaware law, whether to take such actions as they may deem necessary or appropriate to expedite the prompt consummation of our transaction, including: - redeeming the Rights or amending the Rights Agreement to make the Rights inapplicable to the offer and the proposed merger, thereby satisfying the Rights Condition to the consummation of the offer; - approving the offer and the proposed merger before Shell and the Purchaser become "interested stockholders" under section 203, thereby satisfying the Business Combination Condition to the consummation of the offer; and - rendering inapplicable, if otherwise applicable, article IV of the Company's bylaws to our transaction, thereby satisfying the Bylaws Conditions; or, if a proposal has been made respecting a transaction that is determined to be superior to our transaction for the Company's stockholders, whether to take such actions as they may deem necessary or appropriate to facilitate that proposed transaction. The adoption of the proposals by the Company's stockholders would expedite the prompt consummation of the offer and the proposed merger. This adoption would require the affirmative written consent of the holders of a majority of the outstanding shares of the Company's common stock and either the amendment or waiver by the Company's board of one or more provisions in the Company's bylaws or the invalidation of those provisions by, or other relief from, a court. THE OFFER DOES NOT CONSTITUTE A SOLICITATION OF CONSENTS FROM THE COMPANY'S STOCKHOLDERS. ANY SUCH SOLICITATION, INCLUDING THE CONSENT SOLICITATION, WILL BE MADE ONLY BY SEPARATE CONSENT SOLICITATION MATERIALS COMPLYING WITH THE REQUIREMENTS OF SECTION 14(a) OF THE EXCHANGE ACT. Plans for the Company. The Purchaser and Shell expect that, initially following the consummation of the transaction, the business and operations of the Company will, except as described in this offer, be continued substantially as they are currently being conducted. Shell has not made any decisions with respect to the 29 32 composition of the Company's management team following the consummation of the transaction. Shell will continue to evaluate the business and operations of the Company during the pendency of the offer and after the consummation of the transaction and will take such actions as it deems appropriate under the circumstances then existing. It intends to seek additional information about the Company during this period. Thereafter, it intends to review that information as part of a comprehensive review of the Company's business, assets, operations, capitalization, dividend policy, management and personnel, with a view to optimizing development of the Company's potential in conjunction with the Company's current and future business. Following that review, Shell may consider replacing certain of the Company's management and/or personnel or divesting certain of the Company's non-strategic, non-core assets. Except as described above or elsewhere in this offer to purchase, the Purchaser and Shell have no present plans or proposals that would relate to or result in (i) any extraordinary corporate transaction involving the Company (such as a merger, reorganization or liquidation) (ii) any purchase, sale or transfer of a material amount of the Company's assets, (iii) any change in the Company's board of directors or management personnel, except as the Consent Solicitation contemplates, (iv) any material change in the Company's indebtedness, capitalization or dividend policy, (v) any other material change in the Company's corporate structure or business, (vi) a class of securities of the Company being delisted from a national securities exchange or ceasing to be authorized to be quoted in an automated quotations system operated by a national securities association, (vii) a class of equity securities of the Company becoming eligible for termination of registration under section 12(g) of the Exchange Act, (viii) the acquisition or disposition of securities of the Company or (ix) changes in the Company's certificate of incorporation or bylaws, unless the Company is the surviving entity in connection with the proposed merger described herein. Appraisal Rights. The holders of shares will not have appraisal rights as a result of the offer. If the proposed merger is consummated, however, holders of shares at the effective time of that merger who do not vote in favor of, or consent to, the merger will have rights under section 262 of the DGCL to demand appraisal of their shares. Under section 262, stockholders who demand appraisal and comply with the applicable statutory procedures will be entitled to receive a judicial determination of the fair value of their shares (exclusive of any element of value arising from the accomplishment or expectation of the proposed merger) and to receive payment of that fair value in cash, together with a fair rate of interest, if any. Any such judicial determination of the fair value of shares could be based upon factors other than, or in addition to, the price per share to be paid in the proposed merger or the market value of the shares. The value so determined could be more or less than the price per share to be paid in the proposed merger. The foregoing summary of section 262 does not purport to be complete and is qualified in its entirety by reference to section 262. FAILURE TO FOLLOW THE STEPS SECTION 262 REQUIRES FOR PERFECTING APPRAISAL RIGHTS MAY RESULT IN THE LOSS OF THOSE RIGHTS. "Going Private" Transactions. Exchange Act Rule 13e-3 applies to various types of "going private" transactions. The Purchaser does not believe that this rule would apply to the proposed merger unless it takes place more than one year after the termination of the offer. If applicable, Rule 13e-3 requires, among other things, that financial information concerning the fairness of the proposed transaction and the consideration offered to public stockholders in that transaction be filed with the SEC and disclosed to those stockholders prior to the consummation of that transaction. SECTION 13. DIVIDENDS AND DISTRIBUTIONS If, on or after March 12, 2001, the Company should (i) split, combine or otherwise change the shares or its capitalization (other than by redemption of the Rights in accordance with their terms as publicly disclosed prior to March 12, 2001), (ii) acquire or otherwise cause a reduction in the number of outstanding shares or other securities (other than as aforesaid) or (iii) issue or sell additional shares (other than the issuance of shares under option prior to March 12, 2001, in accordance with the terms of those options as publicly disclosed prior to March 12, 2001), shares of any other class of capital stock, other voting securities or any securities convertible into or exchangeable for, or rights, warrants or options, conditional or otherwise, to acquire, any of the foregoing, then, subject to the provisions of section 14, the Purchaser, in its sole discretion, may make such adjustments as it deems appropriate in the offer price and other terms of the offer, including, without limitation, the number or type of securities offered to be purchased. If, on or after March 12, 2001, the Company should declare or pay any cash dividend on the shares or other distribution on the shares, or issue with respect to the shares any additional shares, shares of any other class of 30 33 capital stock, other voting securities or any securities convertible into or exchangeable for, or rights, warrants or options, conditional or otherwise, to acquire, any of the foregoing, payable or distributable to stockholders of record on a date prior to the transfer of the shares purchased under the offer to the Purchaser or its nominee or transferee on the Company's stock transfer records, then, subject to the provisions of section 14, (i) the offer price may, in the sole discretion of the Purchaser, be reduced by the amount of any such cash dividend or cash distribution and (ii) the whole of any such noncash dividend, distribution or issuance to be received by the tendering stockholders will (a) be received and held by the tendering stockholders for the account of the Purchaser and will be required to be promptly remitted and transferred by each tendering stockholder to the depositary for the account of the Purchaser, accompanied by appropriate documentation of transfer, or (b) at the direction of the Purchaser, be exercised for the benefit of the Purchaser, in which case the proceeds of that exercise will promptly be remitted to the Purchaser. Pending such remittance and subject to applicable law, the Purchaser will be entitled to all rights and privileges as owner of any such noncash dividend, distribution, issuance or proceeds and may withhold the entire offer price or deduct from the offer price the amount or value thereof, as determined by the Purchaser in its sole discretion. SECTION 14. CERTAIN CONDITIONS OF THE OFFER Notwithstanding any other term or provision of the offer, and in addition to (and not in limitation of) the Purchaser's rights to extend and amend the offer at any time, in its sole discretion, the Purchaser will not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Exchange Act Rule 14e-1(c) (relating to the Purchaser's obligation to pay for or return tendered shares promptly after the termination or withdrawal of the offer), to pay for, and may delay the acceptance for payment of and accordingly the payment for, any tendered shares if, in the sole judgment of Purchaser, (i) the Minimum Tender Condition shall not have been satisfied, (ii) the Rights Condition shall not have been satisfied, (iii) the Business Combination Condition shall not have been satisfied, (iv) the Bylaws Condition shall not have been satisfied, or (v) any waiting period under the HSR Act applicable to the purchase of shares under the offer shall not have expired or been terminated. Furthermore, notwithstanding any other term or provision of the offer, the Purchaser will not be required to accept for payment or, subject as aforesaid, to pay for any shares not theretofore accepted for payment or paid for, and may terminate or amend the offer if, at any time on or after March 12, 2001, and before the acceptance of those shares for payment or the payment therefor, any of the following events or facts shall have occurred: (a) there shall be threatened, instituted or pending any action, proceeding, application or counterclaim by any government or governmental, regulatory or administrative authority or agency, domestic, foreign or supranational (each, a "Governmental Entity"), or by any other person, domestic or foreign, before any court or Governmental Entity, (i) (A) challenging or seeking to, or which is reasonably likely to, make illegal, delay or otherwise directly or indirectly restrain or prohibit, or seeking to, or which is reasonably likely to, impose voting, procedural, price or other requirements, in addition to those the federal securities laws and the DGCL (each as in effect on the date of this offer to purchase) require, in connection with, the making of the offer, the acceptance for payment of, or payment for, some of or all the shares by the Purchaser, Shell or any other affiliate of Shell or the consummation by the Purchaser, Shell or any other affiliate of Shell of a merger or other similar business combination with the Company, (B) seeking to obtain material damages or (C) otherwise directly or indirectly relating to the transactions contemplated by the offer, the proposed merger or any such merger or business combination, (ii) seeking to prohibit the ownership or operation by the Purchaser, Shell or any other affiliate of Shell of all or any portion of the business or assets of the Company and its subsidiaries or of the Purchaser, Shell or any other affiliate of Shell or to compel the Purchaser, Shell or any other affiliate of Shell to dispose of or hold separate all or any portion of the business or assets of the Company or any of its subsidiaries or of the Purchaser, Shell or any other affiliate of Shell or seeking to impose any limitation on the ability of the Purchaser, Shell or any other affiliate of Shell to conduct such business or own such assets, (iii) seeking to impose or confirm limitations on the ability of the Purchaser, Shell or any other affiliate of Shell effectively to exercise full rights of ownership of the shares or Rights, including, without limitation, the right to vote any shares acquired or owned by the Purchaser, Shell or any other affiliate of Shell on all matters properly presented to the Company's stockholders, (iv) seeking to require divestiture by the Purchaser, Shell or any other affiliate of Shell of any shares, (v) seeking any material diminution in the benefits expected to be derived by the Purchaser, Shell or any other affiliate of Shell as a result of the transactions contemplated by the offer or any merger or other similar business combination with the Company, (vi) which otherwise directly or indirectly relating to the offer or which otherwise, in the sole judgment of the Purchaser, might materially adversely affect the Company or any of its subsidiaries or the Purchaser, Shell or any other affiliate of Shell or the value 31 34 of the shares or (vii) in the sole judgment of the Purchaser, materially adversely affecting the business, properties, assets, liabilities, capitalization, stockholders' equity, condition (financial or otherwise), operations, licenses or franchises, results of operations or prospects of the Company or any of its subsidiaries; (b) there shall be any action taken, or any statute, rule, regulation, legislation, interpretation, judgment, order or injunction proposed, enacted, enforced, promulgated, amended, issued or deemed applicable to (i) the Purchaser, Shell or any other affiliate of Shell or the Company or any of its subsidiaries or (ii) the offer or the proposed merger or any merger or other similar business combination by the Purchaser, Shell or any other affiliate of Shell with the Company, by any government, legislative body or court, domestic, foreign or supranational, or Governmental Entity, other than the routine application of the waiting period provisions of the HSR Act to the offer, that, in the sole judgment of the Purchaser, might, directly or indirectly, result in any of the consequences referred to in clauses (i) through (vii) of paragraph (a) above; (c) any change shall have occurred or been threatened (or any condition, event or development shall have occurred or been threatened involving a prospective change) in the business, properties, assets, liabilities, capitalization, stockholders' equity, condition (financial or otherwise), operations, licenses or franchises, results of operations or prospects of the Company or any of its subsidiaries that, in the sole judgment of the Purchaser, is or may be materially adverse to the Company or any of its subsidiaries, or the Purchaser shall have become aware of any facts that, in the sole judgment of the Purchaser, have or may have material adverse significance with respect to either the value of the Company or any of its subsidiaries or the value of the shares to the Purchaser, Shell or any other affiliate of Shell; (d) there shall have occurred or been threatened (i) any general suspension of trading in, or limitation on prices for, securities on any national securities exchange or in the over-the-counter market in the United States for a period in excess of three hours (excluding suspensions or limitations resulting solely from physical damage or interference with any such exchange or market not related to market conditions), (ii) any extraordinary or material adverse change in the financial markets or major stock exchange indices in the United States or abroad in the market price of shares, (iii) any change in the general political, market, economic or financial conditions in the United States or abroad that could, in the sole judgment of the Purchaser, have a material adverse effect upon the business, properties, assets, liabilities, capitalization, stockholders' equity, condition (financial or otherwise), operations, licenses or franchises, results of operations or prospects of the Company or any of its subsidiaries or the trading in, or value of, the shares, (iv) any material change in United States currency exchange rates or any other currency exchange rates or a suspension of, or limitation on, the markets therefor, (v) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, (vi) any limitation (whether or not mandatory) by any government, domestic, foreign or supranational, or Governmental Entity on, or other event that, in the sole judgment of the Purchaser, might affect the extension of credit by banks or other landing institutions, (vii) a commencement of a war or armed hostilities or other national or international calamity directly or indirectly involving the United States or (viii) in the case of any of the foregoing existing at the time of the commencement of the offer, a material acceleration or worsening thereof; (e) the Company or any of its subsidiaries shall have (i) split, combined or otherwise changed, or authorized or proposed a split, combination or other change of, the shares or its capitalization (other than by redemption of the Rights in accordance with their terms as publicly disclosed prior to March 12, 2001), (ii) acquired or otherwise caused a reduction in the number of, or authorized or proposed the acquisition or other reduction in the number of, outstanding shares or other securities (other than as aforesaid), (iii) issued or sold, or authorized or proposed the issuance, distribution or sale of, additional shares (other than the issuance of shares under option prior to March 12, 2001, in accordance with the terms of those options as publicly disclosed prior to March 12, 2001), shares of any other class of capital stock, other voting securities or any securities convertible into or exchangeable for, or rights, warrants or options, conditional or otherwise, to acquire, any of the foregoing, (iv) declared or paid, or proposed to declare or pay, any dividend or other distribution, whether payable in cash, securities or other property, on or with respect to any shares of capital stock of the Company, (v) altered or proposed to alter any material term of any outstanding security (including the Rights) other than to amend the Rights Agreement to make the Rights inapplicable to the offer and the proposed merger, (vi) incurred any debt other than in the ordinary course of business or any debt containing burdensome covenants, (vii) authorized, recommended, proposed or entered into an agreement with respect to any merger, consolidation, liquidation, dissolution, business combination, acquisition of assets, disposition of assets, release or relinquishment of any material contractual or other right of the Company or any of its subsidiaries or any comparable event not in the ordinary course of business, 32 35 (viii) authorized, recommended, proposed or entered into, or announced its intention to authorize, recommend, propose or enter into, any agreement or arrangement with any person or group that in the sole judgement of the Purchaser could adversely affect either the value of the Company or any of its subsidiaries or the value of the shares to the Purchaser, Shell or any other affiliate of Shell, (ix) entered into any employment, severance of similar agreement, arrangement or plan with or for the benefit of any of its employees other than in the ordinary course of business or entered into or amended any agreements, arrangements or plans so as to provide for increased or accelerated benefits to the employees as a result of or in connection with the transactions the offer contemplates, (x) except as applicable law may require, taken any action to terminate or amend any employee benefit plan (as defined in section 3(2) of the Employee Retirement Income Security Act of 1974) of the Company or any of its subsidiaries or the Purchaser shall have become aware of any such action that was not disclosed in publicly available filings prior to March 12, 2001 or (xi) amended, or authorized or proposed any amendment to, its certificate of incorporation or bylaws (other than an amendment to the bylaws effected at the request of Shell), or the Purchaser shall become aware that the Company or any of its subsidiaries shall have proposed or adopted any such amendment that was not disclosed in publicly available filings prior to March 12, 2001; (f) a tender or exchange offer for any shares shall have been made or publicly proposed to be made by any other person (including the Company or any of its subsidiaries or affiliates), or it shall have been publicly disclosed or the Purchaser shall have otherwise learned that (i) any person, entity (including the Company or any of its subsidiaries) or "group" (within the meaning of section 13(d)(3) of the Exchange Act) shall have acquired or proposed to acquire beneficial ownership of more than five percent of any class or series of capital stock of the Company (including the shares), through the acquisition of stock, the formation of a group or otherwise, or shall have been granted any right, option or warrant, conditional or otherwise, to acquire beneficial ownership of more than 5 percent of any class or series of capital stock of the Company (including the shares), other than acquisitions for bona fide arbitrage purposes only and other than as disclosed in a Schedule 13G on file with the SEC prior to March 12, 2001, (ii) any such person, entity or group that, prior to March 12, 2001, had filed such a schedule with the SEC has acquired or proposes to acquire, through the acquisition of stock, the formation of a group or otherwise, beneficial ownership of 1 percent or more of any class or series of capital stock of the Company (including the shares), or shall have been granted any right, option or warrant, conditional or otherwise, to acquire beneficial ownership of 1 percent or more of any class or series of capital stock of the Company (including the shares), (iii) any person or group shall have entered into a definitive agreement or an agreement in principle or made a proposal with respect to a tender offer or exchange offer or a merger, consolidation or other business combination with or involving the Company or (iv) any person (other than Shell on behalf of Royal Dutch Petroleum Company) shall have filed a Notification and Report Form under the HSR Act (or amended a prior filing to increase the applicable filing threshold set forth therein) or made a public announcement reflecting an intent to acquire the Company or any assets or subsidiaries of the Company; or (g) any approval, permit, authorization, favorable review or consent of any Governmental Entity (including those described or referred to in section 15) shall not have been obtained on terms satisfactory to Purchaser in its sole discretion; or (h) the Purchaser shall have reached an agreement or understanding with the Company providing for the termination of the offer, or the Purchaser, Shell or any other affiliate of Shell shall have entered into a definitive agreement or announced an agreement in principle with the Company providing for a merger or other business combination with the Company or the purchase of stock or assets of the Company; or (i) (a) any material contractual right of the Company or any of its subsidiaries or affiliates shall be impaired or otherwise adversely affected or any material amount of indebtedness of the Company or any of its subsidiaries, joint ventures or partnerships shall become accelerated or otherwise become due before its stated due date, in either case, with or without notice or the lapse of time or both, as a result of the transactions the offer or the proposed merger contemplates or (b) any covenant, term or condition in any of the instruments or agreements, alone or in the aggregate, of the Company or any of its subsidiaries, joint ventures or partnerships, in the sole judgment of the Purchaser, may have a material adverse effect on (1) the business, properties, assets, liabilities, capitalization, stockholders' equity, condition (financial or otherwise), operations, licenses or franchises, results of operations or prospects of the Company or any of its subsidiaries, joint ventures or partnerships or (2) the value of the shares in the hands of the Purchaser (including, but not limited to, any event of default that may ensue as a result of the consummation of the offer or the proposed merger or the acquisition by Shell of control of the Company); 33 36 which, in the sole judgement of the Purchaser in any such case, and regardless of the circumstances (including any action or inaction by the Purchaser, Shell or any other affiliate of Shell) giving rise to any such condition, makes it inadvisable to proceed with the offer and/or with such acceptance for payment or payment. The foregoing conditions are for the sole benefit of the Purchaser and Shell and may be asserted by the Purchaser regardless of the circumstances (including any action or omission by the Purchaser) giving rise to any such condition or may be waived by the Purchaser (in its sole discretion) in whole or in part at any time and from time to time in its sole discretion. The failure by the Purchaser at any time to exercise any of the foregoing rights will not be deemed a waiver of any such right, the waiver of any such right with respect to particular facts and circumstances will not be deemed a waiver with respect to any other facts and circumstances and each such right will be deemed an ongoing right that the Purchaser may assert at any time and from time to time. Any determination by the Purchaser concerning the events described in this section 14 will be final and binding on all parties. SECTION 15. CERTAIN LEGAL MATTERS Except as this section 15 describes, on the basis of a review of publicly available filings made by the Company with the SEC and other publicly available information concerning the Company, neither the Purchaser nor Shell or any of its other affiliates is aware of any license or regulatory permit that appears to be material to the business of the Company and its subsidiaries, taken as a whole, that might be adversely affected by the Purchaser's acquisition of shares (and the indirect acquisition of the stock of the Company's subsidiaries) as this offer to purchase contemplates or of any approval or other action by any Governmental Entity that would be required or desirable for the acquisition or ownership of shares by the Purchaser as this offer to purchase contemplates. Should any such approval or other action be required or desirable, the Purchaser and Shell currently contemplate that such approval or other action will be sought, except as described below under -- "State Takeover Laws." While (except as this section 15 otherwise expressly describes) the Purchaser does not presently intend to delay the acceptance for payment of or payment for shares tendered pursuant to the offer pending the outcome of any such matter, there can be no assurance that any such approval or other action, if needed, would be obtained or would be obtained without substantial conditions or that failure to obtain any such approval or other action might not result in consequences adverse to the Company's business or that certain parts of the Company's business might have to be disposed of if such approvals were not obtained or such other actions were not taken or in order to obtain any such approval or other action. If certain types of adverse action are taken with respect to the matters discussed below, the Purchaser could decline to accept for payment or pay for any shares tendered. See section 14 for a description of various conditions to the offer. State Takeover Laws. A number of states in the United States have in place takeover statutes that purport, in varying degrees, to be applicable to attempts to acquire securities of corporations that are incorporated or have assets, stockholders, executive offices or places of business in those states. In Edgar v. MITE Corp., the United States Supreme Court held that an Illinois statute of this type, which involved state securities laws that made the takeover of various corporations more difficult, imposed a substantial burden on interstate commerce and therefore was unconstitutional. In CTS Corp. v. Dynamics Corp. of America, however, that court held that a state may, as a matter of corporate law and, in particular, those laws concerning corporate governance, constitutionally disqualify a potential acquiror from voting on the affairs of a target corporation without prior approval of the remaining stockholders, provided that those laws were applicable only under certain conditions. Subsequently, a number of other federal courts ruled that various state takeover statutes were unconstitutional insofar as they apply to corporations incorporated outside the state of enactment. Except as described herein, the Purchaser has not attempted to comply with any state takeover statutes in connection with the offer. It reserves the right to challenge the validity or applicability of any state law allegedly applicable to the offer, and nothing in this offer to purchase nor any action taken in connection herewith is intended as a waiver of that right. If any state takeover statute is found applicable to the offer, the Purchaser might be unable to accept for payment or pay for shares tendered pursuant to the offer or be delayed in continuing or consummating the offer. Section 203 of the DGCL. Section 203, in general, prohibits a Delaware corporation such as the Company from engaging in a "Business Combination" (defined as a variety of transactions, including mergers) with an "Interested Stockholder" (defined generally as a person that is the beneficial owner of 15 percent or more of a corporation's outstanding voting stock) for a period of three years following the time that such person became an Interested Stockholder unless (i) prior to the time such person became an Interested Stockholder, the board of directors of the corporation approved either the Business Combination or the transaction that resulted in the 34 37 stockholder becoming an Interested Stockholder, (ii) on consummation of the transaction that resulted in the stockholder becoming an Interested Stockholder, the Interested Stockholder owned at least 85 percent of the voting stock of the corporation outstanding at the time the transaction commenced, excluding stock held by directors who are also officers of the corporation and employee stock ownership plans that do not provide employees with the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer or (iii) at or subsequent to the time such person became an Interested Stockholder, the Business Combination is approved by the board of directors of the corporation and authorized at a meeting of stockholders, and not by written consent, by the affirmative vote of the holders of at least 66 2/3 percent of the outstanding voting stock of the corporation not owned by the Interested Stockholder. Neither the Purchaser nor any of its affiliates presently is an "Interested Stockholder" with respect to the Company, but Shell and the Purchaser would become "Interested Stockholders" with respect to the Company if they consummate the offer. The restrictions that section 203 thereafter would impose on Shell's ability to manage the business of the Company are unacceptable to Shell. Consequently, by the Business Combination Condition, the Purchaser has conditioned the offer on the offer and the proposed merger having been approved by the Company's board before Shell and the Purchasers become "Interested Stockholders" under section 203 or the Purchaser being satisfied, in its sole discretion, that the provisions of section 203 are otherwise inapplicable to the acquisition of shares in the offer and the proposed merger. Bylaws Condition. The Purchaser has conditioned the offer on the Purchaser being satisfied, in its sole discretion, that the provisions of article IV of the Company's bylaws are inapplicable to the acquisition of shares in the transaction. Article IV of the Company's bylaws states that after an "Interested Person" has become an "Interested Person," it shall not become the "beneficial owner" of any additional shares of "Voting Stock" except "as part of (a) the transaction that results in that Person first becoming an Interested Person, or (b) pursuant to a Business Combination entered into in accordance with the certificate of incorporation of the [Company]." Article IV defines "Interested Person" to include any person that, as of any particular date, is the "beneficial owner" of more than 15% of the outstanding shares. It defines "Business Combination" to include a merger of the Company with or into any Interested Person or affiliate of an Interested Person or any other entity, whether or not it is an Interested Person if, after that merger, the surviving entity would be an affiliate of an Interested Person. Antitrust. Under the provisions of the HSR Act applicable to the offer, the acquisition of shares under the offer may be consummated after the expiration of a 15-calendar day waiting period commenced by the filing by Shell on behalf of Royal Dutch Petroleum Company, of a Notification and Report Form with respect to the offer, unless Shell receives a request for additional information or documentary material from the Justice Department's Antitrust Division or the FTC or unless early termination of the waiting period is granted. Shell on behalf of Royal Dutch Petroleum Company made this filing on March 12, 2001. If, within the initial 15-day waiting period, either the Antitrust Division or the FTC requests additional information or material from Shell and its affiliates concerning the offer, the waiting period will be extended and would expire at 11:59 p.m., New York City time, on the 10th calendar day after the date of substantial compliance by Shell and its affiliates with that request. The HSR Act authorizes only one extension of the waiting period pursuant to a request for additional information. Thereafter, the waiting period may be extended only by court order or with the consent of Shell. In practice, complying with a request for additional information or material can take a significant amount of time. In addition, if the Antitrust Division or the FTC raises substantive issues in connection with a proposed transaction, the parties frequently engage in negotiations with the relevant governmental agency concerning possible means of addressing those issues and may agree to delay consummation of the transaction while such negotiations continue. Expiration or termination of the applicable waiting period under the HSR Act is a condition to the Purchaser's obligation to accept for payment and pay for shares tendered pursuant to the offer. The Antitrust Division and the FTC frequently scrutinize the legality under the antitrust laws of transactions such as the Purchaser's proposed acquisition of the Company. At any time before or after the Purchaser's acquisition of shares pursuant to the offer, the Antitrust Division or the FTC could take such action under the antitrust laws as it deems necessary or desirable in the public interest, including seeking to enjoin the purchase of shares pursuant to the offer or the consummation of the proposed merger or seeking the divestiture of shares acquired by the Purchaser or the divestiture of substantial assets of the Company or its subsidiaries or Shell or its subsidiaries. Private parties may also bring legal action under the antitrust laws under various circumstances. 35 38 There can be no assurance that a challenge to the offer on antitrust grounds will not be made or, if such a challenge is made, of the result thereof. SECTION 16. FEES AND EXPENSES Lehman Brothers is acting as dealer manager in connection with the offer and as financial advisor to the Purchaser and Shell in connection with Shell's effort to acquire the Company. Under an engagement letter dated November 20, 2000, between Shell and Lehman Brothers, fees totaling $500,000.00 are currently payable to Lehman Brothers. An additional fee of $6 million will be payable to Lehman Brothers if the offer is consummated. Shell has also agreed to reimburse Lehman Brothers for its reasonable out-of-pocket expenses, including the fees and expenses of its counsel and any other advisor it retains in connection with its engagement, and to indemnify Lehman Brothers and related persons against various liabilities and expenses, including various liabilities and expenses under federal securities laws. In the ordinary course of its business, Lehman Brothers engages in securities trading, market-making and brokerage activities and may, at any time, hold long or short positions and may trade or otherwise effect transactions in securities of the Company. As of March 9, 2001, Lehman Brothers did not hold any shares of the Company for its own accounts. The Purchaser and Shell have retained Morrow & Co., Inc. to act as the information agent and Wilmington Trust Company to serve as the depositary in connection with the offer. The information agent and the depositary each will receive reasonable and customary compensation for their services, be reimbursed for certain reasonable out-of-pocket expenses and be indemnified against various liabilities and expenses in connection therewith, including various liabilities and expenses under the U.S. federal securities laws. Neither the Purchaser nor Shell will pay any fees or commissions to any broker or dealer or other person (other than the dealer manager and the information agent) in connection with the solicitation of tenders of shares pursuant to the offer. The Purchaser will reimburse brokers, dealers, banks and trust companies on their request for customary mailing and handling expenses they incur in forwarding material to their customers. SECTION 17. MISCELLANEOUS The offer is not being made to (nor will tenders be accepted from or on behalf of) holders of shares in any jurisdiction in which the making of the offer or the acceptance thereof would not comply with the laws of that jurisdiction. Neither the Purchaser nor Shell is aware of any jurisdiction in which the making of the offer or the acceptance thereof would not comply with the laws of that jurisdiction. To the extent the Purchaser or Shell becomes aware of any state law that would limit the class of offerees in the offer, it will amend the offer and, depending on the timing of that amendment, if any, will extend the offer to provide adequate dissemination of such information to holders of shares prior to the expiration of the offer. In any jurisdiction the securities, blue sky or other laws of which require the offer to be made by a licensed broker or dealer, the offer is being made on behalf of the Purchaser by the dealer manager or one or more registered brokers or dealers licensed under the laws of that jurisdiction. NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATION ON BEHALF OF THE PURCHASER OR SHELL NOT CONTAINED HEREIN OR IN THE LETTER OF TRANSMITTAL AND, IF GIVEN OR MADE, THAT INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED. The Purchaser and Shell have filed with the SEC a Schedule TO under Exchange Act Rule 14d-3, together with exhibits, furnishing additional information with respect to the offer, and may file amendments thereto. That schedule and any amendments thereto, including exhibits, should be available for inspection and copies should be obtainable in the manner section 8 sets forth (except that such material will not be available at the regional offices of the SEC). SRM Acquisition Company March 12, 2001 36 39 SCHEDULE I DIRECTORS AND EXECUTIVE OFFICERS OF SHELL, THE PURCHASER, SHELL PETROLEUM INC., ROYAL DUTCH PETROLEUM COMPANY AND THE "SHELL" TRANSPORT AND TRADING COMPANY, P.L.C. 1. DIRECTORS AND EXECUTIVE OFFICERS OF SHELL. The name, present principal occupation or employment and five-year employment history of each of the directors and executive officers of Shell are set forth below. All these directors and executive officers listed below are citizens of the United States except Sir Mark Moody-Stuart, who is a British citizen. The principal business address of each director or executive officer is Shell Oil Company, One Shell Plaza, 910 Louisiana, Houston, Texas 77002, except for Sir Mark Moody-Stuart, whose principal business address is Shell Centre, London SE1, 7NA.
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT; NAME MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS - ---- -------------------------------------------------- Steven L. Miller..................... Chairman, President and CEO of Shell since 1999 and a Shell director since 1998. Mr. Miller joined Shell in 1967 and in 1996 became Group Managing Director of Royal Dutch Petroleum Company and a Group Managing Director of the Royal Dutch/Shell Group of Companies. Mr. Miller is a director of Shell Petroleum Inc., Applied Materials, Inc. and Equilon Enterprises LLC. He is also a director for the American Petroleum Institute, the National Urban League, and the Points of Light Foundation. He is a member of the National Petroleum Council and the Business Roundtable. He serves on Rice University's board of trustees and the board of advisors for Rice's James A. Baker III Institute for Public Policy. Mr. Miller serves on the board of directors of the Greater Houston Partnership and he is a trustee for the United Way of the Texas Gulf Coast, currently serving as chairman of its annual fundraising campaign. Joseph E. Antonini................... Director of Shell since 1991. Mr. Antonini is the retired Chairman, President and CEO of Kmart Corp. Mr. Antonini served in that capacity at Kmart Corporation from 1985 through 1995. He currently serves as director and chairman of AWG, Ltd. and as a director of Ziebart International and of My-Turn.com. Rand V. Araskog...................... Director of Shell since 1987. Mr. Araskog is the retired Chairman and CEO of ITT Corporation, a position he held from 1985 through 1998. Mr. Araskog serves on the board of directors of Dow Jones & Co., Inc., ITT Educational Services Inc., ITT Industries, Hartford Financial Services Group and Ravonier Inc. Robert F. Daniell.................... Director of Shell since 1988. Mr. Daniell is the retired Chairman of United Technologies Corporation. Mr. Daniell served in such capacity from 1994 through his retirement in 1997, and currently serves on the board of directors of Verizon Corporation. Vilma S. Martinez.................... Director of Shell since 1998. Ms. Martinez is a partner in the Los Angeles law firm Munger, Tolles & Olson, LLP, and has been a partner at such firm during the past five years. Ms. Martinez serves on the board of directors of Anheuser-Busch Companies, Inc., Burlington Northern Santa Fe Corp., Fluor Corporation and Sanwa Bank California.
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PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT; NAME MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS - ---- -------------------------------------------------- Sir Mark Moody-Stuart................ Director of Shell since 1997. Sir Mark Moody-Stuart has served as Managing Director of Shell International Limited since 1995. He has been a Managing Director since 1991, and Chairman since 1997, of The "Shell" Transport and Trading Company, p.l.c. and The Shell Petroleum Company Limited. He has served as Group Managing Director of the Royal Dutch/Shell Group Companies since 1991. He has also served as Chairman and President since 1997, and Director since 1991, of Shell Petroleum Inc. He currently serves as a director of Liverpool School of Tropical Medicine, Shell Canada Limited, Shell International B.V., Shell Investments Limited, Shell Integrated Gas Ventures p.l.c., and Shell Petroleum N.V. Within the past five years, he has served on the boards of The South Bank Foundation Limited, Shell International Research Maatschappij B.V., Shell Upstream Investments p.l.c., and Montell N.V. Harold A. Poling..................... Director of Shell since 1991. Mr. Poling is the retired Chairman and CEO of Ford Motor Company. Mr. Poling is a member of the Donaldson, Lufkin and Jenrette Investment Banking Advisory Board, a member of The Business Council and is chairman of Eclipse Aviation Corporation. In addition, Mr. Poling currently serves on the boards of directors of Flint Ink Corporation, ArvinMeritor Inc., Monmouth College Senate, Thermadyne Holdings Corporation and William Beaumont Hospital. General Gordon R. Sullivan........... Director of Shell since 1995. General Sullivan retired as the Chief of Staff of the U.S. Army in 1995, served as President of Coleman Federal from 1995 to 1998 and currently is President of the Association of the U.S. Army. General Sullivan is a director of Newel Rubbermaid Corporation. John F. Woodhouse.................... Director of Shell since 1992. Mr. Woodhouse was appointed Senior Chairman of SYSCO Corporation in 1999 and was the Chairman from 1995 to 1999. Mr. Woodhouse joined SYSCO in 1969 as chief financial officer and a founding director, and was CEO of the company from 1985 to 1995. Mr. Woodhouse serves on the board of directors of SYSCO Corporation, Harvard Business School Associates, Mount Holyoke College and from 1993 to 1999 was a director of Winrock International Institute for Agricultural Development. Susan M. Borches..................... Vice President (Corporate Affairs) of Shell since 1998. Prior to joining Shell, Ms. Borches served as director, corporate communications, at the U.S. headquarters of Zurich-based ABB Group. Prior to that, she was director of public affairs at the U.S. Department of Commerce under Secretary C. William Verity. Ms. Borches serves as vice-chair of the United Way of the Texas Gulf Coast's annual fundraising campaign. She also serves on the board of the Houston Museum of Fine Arts and is a member of the Arthur W. Page Society and the Public Affairs Council. Nick J. Caruso, Jr. ................. Vice President-Finance and Chief Financial Officer of Shell since 2000. He was named Chief Financial Officer in 1999 and appointed Vice President-Finance in 2000. Mr. Caruso joined Shell in 1969. In 1995 he assumed the position of Controller and in 1997 accepted additional responsibilities as General Auditor resulting in the position of Controller and General Auditor.
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PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT; NAME MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS - ---- -------------------------------------------------- Patrick M. Dreckman.................. Vice President and General Tax Counsel of Shell since 2000. Mr. Dreckman joined Shell in 1980. In 1995, he served as General Tax Counsel-Oil Products, and in 1998 was named Tax Director of the Alliance among Shell, Texaco and Saudi Aramco. Catherine A. Lamboley................ Vice President, General Counsel and Corporate Secretary of Shell since 2000. Ms. Lamboley joined Shell in 1979. In 1995 she was named Associate General Counsel, Natural Resources/Environmental, and in 1996 was named Vice President-Commercial Products for Shell Oil Products Company. In 1998 she was named Vice President Commercial Marketing & Services of Equilon LLC, the newly formed Shell/ Texaco venture. In 1999 she was named General Manager and Associate General Counsel-Oil Products and Services. Ms. Lamboley serves on the boards of the Hospice at the Texas Medical Center, the Houston Area Women's Center and the American Leadership Forum Houston/ Gulf Coast Chapter. She is chair of the United Way of the Texas Gulf Coast Women's Initiative Committee. Stephen E. Ward...................... Vice President (Government Affairs) of Shell since 1991. Prior to his appointment, he was vice-president of the Mid-Continent Oil and Gas Association for seven years. Mr. Ward served on the personal staff of Senator Lloyd Bentsen from 1977 until 1981. He was Senator's Bentsen's designee on the Senate Select Committee on Intelligence from 1981 to 1984.
2. DIRECTORS AND EXECUTIVE OFFICERS OF THE PURCHASER. The name, present principal occupation or employment and five-year employment history of each of the directors and executive officers of the Purchaser are set forth below. All such directors and executive officers listed below are citizens of the United States, except Mr. van de Vijver, who is a Dutch citizen, and Mr. Berget, who is a Norwegian citizen. The business address of each is SRM Acquisition Company in care of Shell Oil Company, One Shell Plaza, 910 Louisiana, Houston, Texas 77002, (713) 241-6161.
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT; NAME MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS - ---- -------------------------------------------------- Walter van de Vijver................. Director, Chairman, President and CEO. Mr. van de Vijver joined Shell in 1979, and was appointed General Manager Brent Business Unit in Shell UK Exploration in 1993. In 1997, he became Chief Executive of Shell International Gas and Shell Coal International in London, a position he held until 1998 when he was named to his present position as President and Chief Executive Officer of Shell Exploration & Production Company and Chairman of the Board of Coral Energy. Mr. van de Vijver is a member of the board of directors of InterGen, a Shell/Bechtel owned international independent power producer, as well as a board member of the American Petroleum Institute. Jeri R. Eagan........................ Director, Vice President-Finance and Chief Financial Officer. Ms. Eagan joined Shell in 1976 and currently serves as Vice President-Finance and Commercial Operations for Shell Exploration & Production Company. Prior to her present position, she served on various assignments for Shell International Company while based in London.
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PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT; NAME MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS - ---- -------------------------------------------------- David T. Lawrence.................... Director and Vice President-Exploration and Development. Mr. Lawrence joined Shell in 1984. In 1997 he was named Exploration Manager for the Shelf, Exploration and Development Manager for the Shelf in 1998 and Exploration and Development Manager for the Shelf and Deepwater in 1999. In December 1999, he assumed his current position of Vice President, Exploration and Development, for Shell Exploration & Production Company. Mr. Lawrence is a member of the New Orleans Business Council and has served as an AAPG Distinguished Lecturer. Jorn A. Berget....................... Director and Vice President-Production and Surveillance. In 2000, Mr. Berget was named Vice President and General Manager for Production for Shell Exploration & Production Company. He served as General Manager of the Northern Business Unit for Shell Expro in the U.K. from 1995 to 2000. He serves as a member of the Boards of directors of Enterprise Products GP, LLC and Enventure Global Tech- nologies. Marvin E. Odum....................... Director and Vice President-Development and Technology. Mr. Odum joined Shell in 1982 and from 1995 to 1997 was Manager, Engineering and Operation for Onshore. From 1997 to 1999 he served as Vice President, Operations for Altura Energy Ltd., a Shell/Amoco joint venture and from 1999 to 2000 he was Manager, Business Development and Strategy Planning at Shell Exploration & Production Company. In 2000, he assumed his present position as Vice President, Business Development and Technology, of Shell Exploration & Production Company. Kenneth T. Jarvi..................... Vice President-Legal. Mr. Jarvi was Senior Vice President and General Counsel of MidCon Corporation from 1995 to 1998. From 1998 to 2000, Mr. Jarvi served as Vice President and General Counsel at McMurry Oil Company and, upon joining Shell in 2000, was named Associate General Counsel-Exploration and Production. Mr. Jarvi served on the Board of Directors at MidCon Corporation from 1996 to 1998. W.T. Mooney.......................... Vice President-Tax. Mr. Mooney served as Regional Counsel for Shell from 1994 until 2000, when he assumed his current position as Associate General Tax Counsel at Shell.
3. DIRECTORS AND OFFICERS OF SHELL PETROLEUM INC., ROYAL DUTCH PETROLEUM COMPANY AND THE "SHELL" TRANSPORT AND TRADING COMPANY, P.L.C. Shell and the Purchaser are both wholly owned subsidiaries of Shell Petroleum Inc., a Delaware corporation, whose shares are directly or indirectly owned 60 percent by Royal Dutch Petroleum Company, The Hague, The Netherlands and 40 percent by The "Shell" Transport and Trading Company, p.l.c., London, England. Royal Dutch Petroleum Company and The "Shell" Transport and Trading Company, p.l.c. are holding companies which together directly or indirectly own securities of companies of the Royal Dutch/Shell Group of Companies, the members of which are severally engaged throughout the greater part of the world in all of the principal aspects of the oil and natural gas industry. They also have substantial interests in chemicals and additional interests in power generation, renewable resources (chiefly in forestry and solar energy), coal and other businesses. The name, present principal occupation or employment and five-year employment history of each of the directors and officers of each of Shell Petroleum Inc., Royal Dutch Petroleum Company and The "Shell" Transport and Trading Company, p.l.c. are set forth below. Unless otherwise indicated, the principal business address of each director or officer of Shell Petroleum Inc. is P.O. Box 8985, Wilmington, Delaware 19899. S-4 43 Unless otherwise indicated, the principal business address of each director or executive officer of Royal Dutch Petroleum Company is 30, Carel van Bylandtlaan, 2596 HR The Hague, The Netherlands, and the principal business address of each director or executive officer of The "Shell" Transport and Trading Company, p.l.c. is Shell Centre, London SE1 7NA, England. SHELL PETROLEUM INC. All of the directors and executive officers listed below are citizens of the United States, except Sir Mark Moody-Stuart, who is a British citizen.
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT; NAME MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS - ---- -------------------------------------------------- Sir Mark Moody-Stuart................ Chairman and President since 1997, and Director since 1991, of Shell Petroleum Inc. Director of Shell since 1997. Sir Mark Moody-Stuart has served as Managing Director of Shell International Limited since 1995. He has been a Managing Director since 1991, and Chairman since 1997, of The "Shell" Transport and Trading Company, p.l.c. and The Shell Petroleum Company Limited. He has served as Group Managing Director of the Royal Dutch/Shell Group Companies since 1991. He currently serves as a director of Liverpool School of Tropical Medicine, Shell Canada Limited, Shell International B.V., Shell Investments Limited, Shell Integrated Gas Ventures p.l.c., and Shell Petroleum N.V. Within the past five years, he has served on the boards of The South Bank Foundation Limited, Shell International Research Maatschappij B.V., Shell Upstream Investments p.l.c., and Montell N.V. Steven L. Miller..................... Director of Shell Petroleum, Inc. since 1996. Chairman, President and CEO of Shell since 1999 and a Shell director since 1998. Mr. Miller joined Shell in 1967 and in 1996 became Group Managing Director of Royal Dutch Petroleum Company and a Managing Director of the Royal Dutch/Shell Group of Companies. Mr. Miller is a director of Shell Petroleum Inc., Applied Materials, Inc. and Equilon Enter- prises LLC. He is also a director for the American Petroleum Institute, the National Urban League, and the Points of Light Foundation. He is a member of the National Petroleum Council and the Business Roundtable. He serves on Rice University's board of trustees and the board of advisors for Rice's James A. Baker III Institute for Public Policy. Mr. Miller serves on the board of directors of the Greater Houston Partnership and he is a trustee for the United Way of the Texas Gulf Coast, currently serving as chairman of its annual fundraising campaign. Nick J. Caruso, Jr. ................. Director, Treasurer and Controller of Shell Petroleum Inc. Vice President-Finance and Chief Financial Officer of Shell. He was named Chief Financial Officer in 1999 and appointed Vice President Finance in 2000. Mr. Caruso joined Shell in 1969. In 1995 he assumed the position of Controller and in 1997 accepted additional responsibilities as General Auditor resulting in the position of Controller and General Auditor.
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PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT; NAME MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS - ---- -------------------------------------------------- Catherine A. Lamboley................ Director and Corporate Secretary of Shell Petroleum Inc. Vice President, General Counsel and Corporate Secretary of Shell since 2000. Ms. Lamboley joined Shell in 1979. In 1995 she was named Associate General Counsel, Natural Resources/Environmental, and in 1996 was named Vice President Commercial Products for Shell Oil Products Company. In 1998 she was named Vice President Commercial Marketing & Services of Equilon LLC, the newly formed Shell/Texaco venture. In 1999 she was named General Manager and Associate General Counsel-Oil Products and Services. Ms. Lamboley serves on the boards of the Hospice at the Texas Medical Center, the Houston Area Women's Center and the American Leadership Forum Houston/ Gulf Coast Chapter. She is chair of the United Way of the Texas Gulf Coast Women's Initiative Committee. Patrick M. Dreckman.................. Vice President-Tax of Shell Petroleum Inc. Vice President and General Tax Counsel of Shell since 2000. Mr. Dreckman joined Shell in 1980. In 1995, he served as General Tax Counsel-Oil Products, and in 1998 was named Tax Director of the Alliance among Shell, Texaco and Saudi Aramco.
ROYAL DUTCH PETROLEUM COMPANY All of the directors and executive officers listed below are Dutch citizens except for Professor Milberg, who is a German citizen.
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT; NAME MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS - ---- -------------------------------------------------- J. van der Veer...................... Managing Director since 1997 and President since July 2000. From 1995 to 1997, he was President and Chief Executive Officer of Shell Chemical Company in the USA. Mr. van der Veer has been a Group Managing Director since 1997. He is a member of the Supervisory Board of De Nederlandsche Bank. H. J. M. Roels....................... Managing Director of Royal Dutch Petroleum Company and a Group Managing Director since 1999. Mr. Roels joined Royal Dutch Petroleum Company in 1971. From 1994 to 1996, he was Area Coordinator for a number of Latin American countries. From 1996 to 1998, he was Regional Business Director Middle East and Africa, Exploration and Production. In 1998 he became General Manager of the Nederlandse Aardolie Maatschappij B.V. and a Managing Director of Shell Neder- land B.V. L. C. van Wachem..................... Chairman of the Supervisory Board since 1992. Mr. van Wachem was a Managing Director of Royal Dutch Petroleum Company from 1977 to 1992; President from 1982 to 1992 and a Group Managing Director from 1977 to 1992. He is Chairman of the Supervisory Board of Royal Philips Electronics, Vice-Chairman of the Board of Directors of Zurich Financial Services and a member of the Supervisory Board of Akzo Nobel, BMW and Bayer and a member of the Board of Directors of IBM and Atco (Canada)
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PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT; NAME MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS - ---- -------------------------------------------------- M. A. van den Bergh.................. Member of the Supervisory Board since July 2000. Mr. van den Bergh was a Managing Director of Royal Dutch Petroleum Company from 1992 to 2000; President from 1998 to 2000 and a Group Managing Director from 1992 to 2000. He is Chairman designate of the Board of Directors of Lloyds TSB and a member of the Board of Directors of British Telecom. A. G. Jacobs......................... Member of the Supervisory Board since 1998. Mr. Jacobs was formerly Chairman of the Executive Board of ING Group. He is Chairman of the Supervisory Board of Joh. Enschede and Vice-Chairman of the Supervisory Board of Buhrmann and VNU and a member of the Supervisory Board of Euronext, IHC Caland, ING Group, Nederlandse Spoorwegen and Strukton Groep. Jonkheer A. A. Loudon................ Member of the Supervisory Board since 1997. Jonkheer A. A. Loudon is formerly Chairman of the Board of Management of Akzo Nobel. He is Chairman of the Supervisory Board of Akzo Nobel, ABN AMRO Bank and HBG Hollandsche Beton Groep, a member of the Board of Directors of Corus Group and a member of the International Advisory Board of Allianz. He is also a former member of the First Chamber of the Dutch Parliament. Professor J. Milberg................. Member of the Supervisory Board of Royal Dutch Petroleum since July 2000. Professor Milberg is presently, and has been during the past five years, a member of the Board of Management of BMW. Since February 1999, he has been Chairman of the Board of Management of BMW. H. de Ruiter......................... Member of the Supervisory Board since 1994. Mr. de Ruiter was a Managing Director of Royal Dutch Petroleum Company from 1983 to 1994. He is Chairman of the Supervisory Board of Royal Ahold, Beers and Wolters Kluwer, Vice-Chairman of the Board of Directors of Corus Group, Vice-Chairman of the Supervisory Board of Aegon and a member of the Supervisory Board of Heineken and Royal Vopak. J. D. Timmer......................... Member of the Supervisory Board since 1996. Mr. Timmer was formerly President and Chairman of the Board of Management of Royal Philips Electronics. He is Chairman of the Supervisory Board of Nederlandse Spoorwegen and PSV, a member of the Supervisory Board of ING Group and NPM Capital and a member of the Advisory Board of KPMG.
S-7 46 THE "SHELL" TRANSPORT AND TRADING COMPANY, P.L.C. All of the directors and executive officers listed below are British citizens except Mr. Alireza who is a citizen of Saudi Arabia, Professor O'Neill who is a citizen of Australia, and Mr. Giusti who is a citizen of Venezuela.
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT; NAME MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS - ---- -------------------------------------------------- Sir Mark Moody-Stuart................ Managing Director since 1991, and Chairman since 1997, of The "Shell" Transport and Trading Company, p.l.c. and The Shell Petroleum Company Limited. Sir Mark Moody-Stuart has served as Director of Shell since 1997 and Managing Director of Shell International Limited since 1995. He has served as Group Managing Director of the Royal Dutch/Shell Group Companies since 1991. He has also served as Chairman and President since 1997, and Director since 1991, of Shell Petroleum Inc. He currently serves as a director of Liverpool School of Tropical Medicine, Shell Canada Limited, Shell International B.V., Shell Investments Limited, Shell Integrated Gas Ventures p.l.c., and Shell Petroleum N.V. Within the past five years, he has served on the boards of The South Bank Foundation Limited, Shell International Research Maatschappij B.V., Shell Upstream Investments p.l.c., and Montell N.V. P. D. Skinner........................ Managing Director since January 1, 2000. Mr. Skinner is Chief Executive, Oil Products. He was Director, Strategy and Business Services, Oil Products from 1996 to 1998, and was President, Shell Europe Oil Products from 1998 to 1999. He is currently a member of the Board of INSEAD, the European/Asian business school. P. B. Watts.......................... Managing Director since 1997. Chief Executive, Exploration and Production. He was named Coordinator, Europe in 1994 and was appointed Director Planning, Environment and External Affairs, Shell International in 1996. He is currently a member of the International Chamber of Commerce's (ICC) Executive Board and Chairman of ICC UK's governing body. He is also a member of the Executive Committee of the World Business Council for Sustainable Development. Teymour A. Alireza................... Director since 1997. Mr. Alireza is President and Deputy Chairman, The Alireza Group, Chairman of National Pipe Company Ltd, Saudi Arabia, Director, Arabian Gulf Investments (Far East) Ltd, Hong Kong and a member of the International Board of Trustees of the World Wide Fund for Nature. Dr. Eileen Buttle.................... Director since 1998. Dr. Buttle retired in 1994 from a career of public scientific appointments. She is the UK member of the European Environment Agency's Scientific Committee and Chairman of the UK Arctic Consultative Forum. Dr. Buttle is a member of a number of Government and Research Council scrutiny committees of environmental aspects of national and European research and is Chairman of a review of long-term environmental monitoring for the Natural Environment Research Council. Sir Peter Holmes..................... Director since 1982. Sir Peter Holmes was Chairman from 1985 to 1993 and a Group Managing Director from 1982 to 1993.
S-8 47
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT; NAME MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS - ---- -------------------------------------------------- Sir John Jennings.................... Director since 1987. Sir John Jennings was Chairman from 1993 to 1997 and a Group Managing Director from 1987 to 1997. He is a Director of Det Norske Veritas, The MITIE Group and Robert Fleming Holdings and a member of Board of Counsellors of Bechtel Corporation and of International Advisory Board of Toyota Corporation. Professor Robert J. O'Neill.......... Director since 1992. Since 1987 Professor O'Neill has been the Chichele Professor of the History of War, All Souls College, Oxford. He is Chairman of the International Institute for Strategic Studies, Co-Director of the All Souls Foreign Policy Studies Programme at Oxford, a Director of Capital Income Builder Inc. and the Capital World Growth and Income Fund, and an Advisory Board Member of the Investment Company of America. Lord Oxburgh......................... Director since January 1996. Lord Oxburgh was Chief Scientific Adviser, Ministry of Defense from 1987 to 1993 and has been Rector, Imperial College of Science, Technology and Medicine, since 1993. Sir William Purves................... Director since 1993. Sir William Purves retired from the Chairmanship of HSBC Holdings plc in May 1998 after 44 years service. He is Chairman of Hakluyt & Company Ltd, Deputy Chairman of Alstom s.a., Trustee of Reuters Founders Share Company Ltd, Director of Scottish Medicine plc, Trident Safeguards Ltd and World Shipping and Investment Co Ltd. He is also a member of Hong Kong Chief Executive's International Advisory Council and a member of Textron Inc International Advisory Council. Luis E. Giusti....................... Director since 2001. From 1999 to the present, Mr. Giusti has been the Senior Advisor for the Center for Strategic and International Studies. From 1994 to 1999, he was the Chairman and CEO of Petroleos de Venezuela, S.A.
S-9 48 SCHEDULE II SHELL OIL COMPANY'S INTERESTS IN THE COMPANY'S SHARES; RECENT TRANSACTIONS IN THE COMPANY'S SHARES The Purchaser, Shell and SWEPI LP, an indirect wholly owned subsidiary of Shell ("SWEPI"), together beneficially own 107,100 shares of the Company, or less than 1 percent of the outstanding shares. Except as disclosed below, Shell and its affiliates have not engaged in any transactions in the Company's shares during the 60 days prior to the date of this offer to purchase. On March 1, 2001, SWEPI purchased 30,000 shares of the Company at an average price per share of $43.78. Such shares were purchased in the open market through purchases executed on the NYSE. The prices SWEPI paid for the shares ranged from $43.55 to $44.25 per share. On March 2, 2001, SWEPI purchased 37,100 shares of the Company at an average price per share of $44.26. Such shares were purchased in the open market through purchases executed on the NYSE. The prices SWEPI paid for the shares ranged from $43.70 to $44.70 per share. On March 6, 2001, SWEPI purchased 40,000 shares of the Company at a price per share of $45.65. Such shares were purchased in the open market through a single block purchase executed on the NYSE. On March 9, 2001, SWEPI transferred 100 shares of the Company to each of the Purchaser and Shell. S-10 49 Facsimile copies of the letter of transmittal, properly completed and duly executed, will be accepted. The letter of transmittal, certificates for shares and/or Rights and any other required documents should be sent or delivered by each stockholder of the Company or his broker, dealer, commercial bank, trust company or other nominee to the depositary as follows: The Depositary for the offer is: WILMINGTON TRUST COMPANY By Mail: By Facsimile Transmission: By Hand or Overnight Delivery: Corporate Trust (for eligible institutions only) Wilmington Trust Company Reorganization Services (302) 651-1079 1105 North Market Street, 1st Wilmington Trust Company For Confirmation Telephone: Floor P.O. Box 8861 (302) 651-8869 Wilmington, Delaware 19801 Wilmington, Delaware 19899-8861 Attn: Corporate Trust Reorganization Services
Questions and requests for assistance or for additional copies of this offer to purchase, the letter of transmittal and the notice of guaranteed delivery may be directed to the information agent or to the dealer manager at their respective telephone numbers and location listed below. You may also contact your broker, dealer, bank, trust company or other nominee for assistance concerning the offer. The Information Agent for the offer is: MORROW & CO., INC. 445 Park Avenue, 5th Floor New York, New York 10022 Call Collect: (212) 754-8000 Banks and Brokerage Firms, Please Call: (800) 654-2468 Stockholders Please Call: (800) 607-0088 E-mail: barrett.info@morrowco.com The Dealer Manager for the offer is: LEHMAN BROTHERS Three World Financial Center 200 Vesey Street New York, New York 10285 Call Collect: (212) 526-4867 or (713) 236-3965 E-mail: barrett.info@lehman.com EX-99.A1.B 3 h84893tex99-a1_b.txt LETTER OF TRANSMITTAL 1 EXHIBIT (a)(1)(B) Letter of Transmittal To Tender Shares of Common Stock (Including the Associated Preferred Stock Purchase Rights) of BARRETT RESOURCES CORPORATION Pursuant to the Offer to Purchase Dated March 12, 2001 to SRM ACQUISITION COMPANY, an indirect wholly owned subsidiary of SHELL OIL COMPANY THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON APRIL 6, 2001, UNLESS THE OFFER IS EXTENDED. The Depositary for the Offer is: WILMINGTON TRUST COMPANY By Mail: By Facsimile Transmission: By Hand/Overnight Courier: Corporate Trust Reorganization Services (302) 651-1079 Wilmington Trust Company Wilmington Trust Company Confirmation by Telephone: 1105 North Market St., 1st Floor P. O. Box 8861 (302) 651-8869 Wilmington, Delaware 19801 Wilmington, Delaware Attn: Corporate Trust 19899-8861 Reorganization Services
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS, OR TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE NUMBER, OTHER THAN AS SET FORTH ABOVE, WILL NOT CONSTITUTE A VALID DELIVERY. DELIVERIES TO THE PURCHASER, SHELL OR THE DEALER MANAGER WILL NOT BE FORWARDED TO THE DEPOSITARY AND THEREFORE WILL NOT CONSTITUTE VALID DELIVERY. THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED. This Letter of Transmittal is to be used if certificates for shares and/or Rights (as defined below) are to be forwarded herewith or, unless an Agent's Message (as defined in Section 2 of the Offer to Purchase (as defined below)) is utilized, if delivery of shares and/or Rights is to be made by book-entry transfer to an account maintained by the Depositary (as defined below) at the Book-Entry Transfer Facility (as defined in Section 2 of the Offer to Purchase) pursuant to the procedures described in Section 2 of the Offer to Purchase. See Instruction 2. Stockholders who deliver shares and/or Rights by book-entry transfer are referred to herein as "Book-Entry Stockholders." Stockholders whose certificates for shares and/or Rights are not immediately available or who cannot deliver either the certificates for, or a Book-Entry Confirmation (as defined in Section 2 of the Offer to Purchase) with respect to, their shares and/or Rights and all other documents required hereby to the Depositary prior to the Expiration Date (as defined in Section 1 of the Offer to Purchase) must tender their shares and/or Rights in accordance with the guaranteed delivery procedures described in Section 2 of the Offer to Purchase. See Instruction 2. DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY TRANSFER FACILITY DOES NOT CONSTITUTE DELIVERY TO THE DEPOSITARY. Holders of shares are required to tender one Right (as defined below) for each share tendered to effect a valid tender of such share. Unless and until the Distribution Date (as defined in the Offer to Purchase) occurs, the Rights are represented by and transferred with the shares. Accordingly, if the Distribution Date does not occur prior to the Expiration Date, a tender of shares also constitutes a tender of the related Rights. If, however, pursuant to the Rights Agreement (as defined below) or otherwise, the Distribution Date does occur and separate certificates ("Rights Certificates") have been distributed by the Company (as defined below) to holders of shares prior to the date of tender pursuant to the Offer (as defined below), Rights 2 Certificates representing a number of Rights equal to the number of shares being tendered must be delivered to the Depositary in order for such shares to be validly tendered, or if available, a Book-Entry Confirmation must be received with respect thereto. If the Distribution Date has occurred and Rights Certificates have not been distributed prior to the time shares are tendered pursuant to the Offer, a tender of shares without Rights constitutes an agreement by the tendering stockholder to deliver Rights Certificates representing a number of Rights equal to the number of shares tendered pursuant to the Offer to the Depositary within a period ending on the later of (1) three trading days after the date of execution of the Notice of Guaranteed Delivery or (2) three business days after the date such Rights Certificates are distributed. A "trading day" is any day on which the New York Stock Exchange is open for business. The Purchaser reserves the right to require that it receive such Rights Certificates, or a Book-Entry Confirmation, if available, prior to accepting shares for payment. Payment for shares tendered and purchased pursuant to the Offer will be made only after timely receipt by the Depositary of, among other things, Rights Certificates, if such certificates have been distributed to holders of shares. The Purchaser will not pay any additional consideration for the Rights tendered pursuant to the Offer. Holders whose certificates for shares ("Share Certificates") and, if applicable, Rights Certificates, are not immediately available (including if the Distribution Date has occurred but Rights Certificates have not yet been distributed by the Company) or who cannot deliver either the certificates for, or a Book-Entry Confirmation (as defined in the Offer to Purchase) with respect to, their shares and/or Rights, and all other documents required hereby to the Depositary prior to the Expiration Date must tender their shares and Rights in accordance with the guaranteed delivery procedures set forth in Section 2 of the Offer to Purchase. See Instruction 2. 2 3
- ------------------------------------------------------------------------------------------------------------------------------------ DESCRIPTION OF SHARES AND/OR RIGHTS TENDERED - ------------------------------------------------------------------------------------------------------------------------------------ Number Name(s) and Address(es) of Registered Holder(s) Number of Rights of Rights Number of (Please Fill in Exactly as Name(s) Appear(s) Share Shares Number of Certificate Represented by Rights on Share Certificate(s) and/or Rights Certificate Represented by Shares Number(s) Certificates(s) Tendered Certificate(s) (Attach List if Necessary) Number(s)(1) Certificate(s)(1) Tendered(2) (1)(3) (1)(3) (2)(3) - ------------------------------------------------------------------------------------------------------------------------------------ ------------------------------------------------------------------------------------- ------------------------------------------------------------------------------------- ------------------------------------------------------------------------------------- ------------------------------------------------------------------------------------- ------------------------------------------------------------------------------------- ------------------------------------------------------------------------------------- ------------------------------------------------------------------------------------- Total Shares - ------------------------------------------------------------------------------------------------------------------------------------ (1) Need not be completed by Book-Entry Stockholders. (2) Unless otherwise indicated, it will be assumed that all shares and/or Rights represented by certificates delivered to the Depositary are being tendered. See Instruction 4. (3) Need not be completed unless certificates for the Rights have been issued. - ------------------------------------------------------------------------------------------------------------------------------------
BOOK-ENTRY TRANSFER [ ] CHECK HERE IF TENDERED SHARES AND/OR RIGHTS ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO AN ACCOUNT MAINTAINED BY THE DEPOSITARY WITH THE BOOK-ENTRY TRANSFER FACILITY AND COMPLETE THE FOLLOWING (ONLY PARTICIPANTS IN THE BOOK-ENTRY TRANSFER FACILITY MAY DELIVER SHARES AND/OR RIGHTS BY BOOK-ENTRY TRANSFER): Name of Tendering Institution - -------------------------------------------------------------------------------- Account Number - -------------------------------------------------------------------------------- Transaction Code - -------------------------------------------------------------------------------- PRIOR GUARANTEED DELIVERY [ ] CHECK HERE IF TENDERED SHARES AND/OR RIGHTS ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE FOLLOWING: Names(s) of Registered Owners(s) - -------------------------------------------------------------------------------- Date of Execution of Notice of Guaranteed Delivery - -------------------------------------------------------------------------- Name of Institution that Guaranteed Delivery - -------------------------------------------------------------------------------- If delivered by book-entry transfer: Account Number at Book-Entry Transfer Facility - ----------------------------------------------------------------------------- Transaction Code Number - -------------------------------------------------------------------------------- 3 4 NOTE: SIGNATURES MUST BE PROVIDED BELOW PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY Ladies and Gentlemen: The undersigned hereby tenders to SRM Acquisition Company, a Delaware corporation (the "Purchaser") and an indirect wholly owned subsidiary of Shell Oil Company, a Delaware corporation, (1) the above-described shares of common stock, par value $.01 per share (the "shares"), and (2) the associated preferred stock purchase rights (the "Rights") outstanding under the Rights Agreement (the "Rights Agreement") dated as of August 5, 1997 by and between the Company and BankBoston, N.A., as Rights Agent, as amended, of Barrett Resources Corporation, a Delaware corporation (the "Company"), upon the terms and subject to the conditions set forth in the Purchaser's Offer to Purchase dated March 12, 2001 (the "Offer to Purchase") and this Letter of Transmittal (which, together with any amendments or supplements thereto or hereto, collectively constitute the "Offer"), receipt of which is hereby acknowledged. Unless the context otherwise requires, all references to shares shall be deemed to include the associated Rights, and all references to the Rights shall be deemed to include the benefits that may inure to holders of the Rights pursuant to the Rights Agreement. Upon the terms and subject to the conditions of the Offer and effective upon acceptance for payment of and payment for the shares and Rights tendered herewith in accordance with the terms of the Offer, the undersigned hereby sells, assigns and transfers to, or upon the order of, the Purchaser all right, title and interest in and to all the shares and Rights that are being tendered hereby (and any and all other shares and Rights or other securities or rights issued or issuable in respect thereof on or after March 12, 2001), and irrevocably constitutes and appoints Wilmington Trust Company (the "Depositary"), the true and lawful agent and attorney-in-fact of the undersigned, with full power of substitution (such power of attorney being deemed to be an irrevocable power coupled with an interest), to the full extent of the undersigned's rights with respect to such shares and Rights (and any such other shares and Rights or securities or rights), (1) to deliver certificates for such shares and Rights (and any such other shares and Rights or securities or rights) or transfer ownership of such shares and Rights (and any such other shares and Rights or securities or rights) on the account books maintained by the Book-Entry Transfer Facility (as defined in Section 8 of the Offer to Purchase), together, in any such case, with all accompanying evidences of transfer and authenticity to, or upon the order of, the Purchaser, (2) to present such shares and Rights (and any such other shares and Rights or securities or rights) for transfer on the Company's books and (3) to receive all benefits and otherwise exercise all rights of beneficial ownership of such shares and Rights (and any such other shares and Rights or securities or rights), all in accordance with the terms of the Offer. The undersigned understands that, unless the Rights are redeemed prior to the Expiration Date (as defined in Section 1 of the Offer to Purchase), holders of shares will be required to tender one associated Right for each share tendered in order to effect a valid tender of such share. The undersigned understands that if the Distribution Date (as defined in Section 8 of the Offer to Purchase) has occurred and Rights Certificates have been distributed to holders of shares prior to the time a holder's shares are purchased pursuant to the Offer, in order for Rights (and the corresponding shares) to be validly tendered, Rights Certificates representing the number of Rights equal to the number of shares tendered must be delivered to the Depositary or, if available, a Book-Entry Confirmation must be received by the Depositary with respect thereto. If the Distribution Date has occurred and Rights Certificates have not been distributed prior to the time shares are purchased pursuant to the Offer, Rights may be tendered prior to a stockholder receiving Rights Certificates by use of the guaranteed delivery procedure described in Section 2 of the Offer to Purchase. In any case, a tender of shares constitutes an agreement by the tendering stockholder to deliver Rights Certificates representing a number of Rights equal to the number of shares tendered pursuant to the Offer to the Depositary within a period ending on the later of (1) three trading days after the date of execution of the Notice of Guaranteed Delivery or (2) three business days after the date Rights Certificates are distributed. A "trading day" is any day on which the New York Stock Exchange is open for business. The Purchaser reserves the right to require that the Depositary receive Rights Certificates, or a Book-Entry Confirmation, if available, with respect to such Rights prior to accepting the related shares for payment pursuant to the Offer if the Distribution Date has occurred prior to the Expiration Date. The Purchaser will not pay any additional consideration for the Rights tendered pursuant to the Offer. If, on or after March 12, 2001, the Company should declare or pay any cash dividend on the shares or other distribution on the shares, or issue with respect to the shares any additional shares, shares of any other class of capital stock, other voting securities or any securities convertible into or exchangeable for, or rights, warrants or options, conditional or otherwise, to acquire, any of the foregoing, payable or distributable to stockholders of record on a date prior to the transfer of the shares purchased under the Offer to the Purchaser or its nominee or transferee on the Company's stock transfer records, then, subject to the provisions of Section 13 of the Offer to Purchase, (1) the Offer price may, in the sole discretion of the Purchaser, be reduced by the amount of any such cash dividend or cash distribution and (2) the whole of any such noncash dividend, distribution or issuance to be received by the tendering stockholders will (a) be received and held by the tendering stockholders for the account of the Purchaser and will be required to be promptly remitted and transferred by each tendering stockholder to the Depositary for the account of the Purchaser, accompanied by appropriate documentation of transfer, or (b) at the direction of the Purchaser, be exercised for the benefit of the Purchaser, in which case the proceeds of that exercise will promptly be remitted to the Purchaser. Pending such remittance and subject to applicable law, the Purchaser will be entitled to all rights and privileges as 4 5 owner of any such noncash dividend, distribution, issuance or proceeds and may withhold the entire offer price or deduct from the offer price the amount or value thereof, as determined by the Purchaser in its sole discretion. The undersigned hereby represents and warrants that the undersigned has full power and authority to tender, sell, assign and transfer the tendered shares and Rights (and any and all other shares and Rights or other securities or rights issued or issuable in respect of such shares and Rights on or after March 12, 2001) and, when the shares are accepted for payment by the Purchaser, the Purchaser will acquire good title thereto, free and clear of all liens, restrictions, claims and encumbrances, and the same will not be subject to any adverse claim. The undersigned will, upon request, execute any additional documents deemed by the Depositary or the Purchaser to be necessary or desirable to complete the sale, assignment and transfer of the tendered shares (and any and all such other shares or securities or rights). All authority conferred or agreed to be conferred pursuant to this Letter of Transmittal shall be binding upon the successors, assigns, heirs, executors, administrators and legal representatives of the undersigned and shall not be affected by, and shall survive, the death or incapacity of the undersigned. Except as stated in the Offer to Purchase this tender is irrevocable. The undersigned hereby irrevocably appoints Kenneth T. Jarvi, Brian W. Curtis and E. Vaughn Phillips and each of them, and any other designees of the Purchaser, the attorneys-in-fact and proxies of the undersigned, each with full power of substitution, (1) to vote at any annual, special or adjourned meeting of the Company's stockholders or otherwise in such manner as each such attorney-in-fact and proxy or his substitute shall in his sole discretion deem proper with respect to, (2) to execute any written consent concerning any matter as each such attorney-in-fact and proxy or his substitute shall in his sole discretion deem proper with respect to, and (3) to otherwise act as each such attorney-in-fact and proxy or his substitute shall in his sole discretion deem proper with respect to, the shares and Rights tendered hereby that have been accepted for payment by the Purchaser prior to the time any such action is taken and with respect to which the undersigned is entitled to vote (and any and all other shares and Rights or other securities or rights issued or issuable in respect of such shares and Rights on or after March 12, 2001). This appointment is effective when, and only to the extent that, the Purchaser accepts for payment such shares and Rights as provided in the Offer to Purchase. This power of attorney and proxy are irrevocable and are granted in consideration of the acceptance for payment of such shares and Rights in accordance with the terms of the Offer. Upon such acceptance for payment, all prior powers of attorney, proxies and consents given by the undersigned with respect to such shares and Rights (and any such other shares and Rights or securities or rights) will, without further action, be revoked and no subsequent powers of attorney, proxies, consents or revocations may be given (and, if given, will not be effective) by the undersigned. The undersigned understands that the valid tender of shares and/or Rights pursuant to any of the procedures described in Section 2 of the Offer to Purchase and in the Instructions hereto will constitute a binding agreement between the undersigned and the Purchaser upon the terms and subject to the conditions of the Offer. Unless otherwise indicated herein under "Special Payment Instructions," please issue the check for the purchase price and/or return any certificates for shares and/or Rights not tendered or accepted for payment in the name(s) of the registered holder(s) appearing under "Description of Shares and/or Rights Tendered." Similarly, unless otherwise indicated under "Special Delivery Instructions," please mail the check for the purchase price and/or return any certificates for shares and/or Rights not tendered or not accepted for payment (and accompanying documents, as appropriate) to the address(es) of the registered holder(s) appearing under "Description of Shares and/or Rights Tendered." In the event that both "Special Delivery Instructions" and "Special Payment Instructions" are completed, please issue the check for the purchase price and/or return any certificates for shares or Rights not tendered or not accepted for payment (and any accompanying documents, as appropriate) in the name of, and deliver such check and/or return such certificates (and any accompanying documents, as appropriate) to, the person or persons so indicated. Please credit any shares or Rights tendered herewith by book-entry transfer that are not accepted for payment by crediting the account at the Book-Entry Transfer Facility designated above. The undersigned recognizes that the Purchaser has no obligation pursuant to "Special Payment Instructions" to transfer any shares or Rights from the name of the registered holder thereof if the Purchaser does not accept for payment any of the shares so tendered. 5 6 [ ] CHECK HERE IF ANY OF THE CERTIFICATES REPRESENTING SHARES AND/OR RIGHTS THAT YOU OWN HAVE BEEN LOST OR DESTROYED AND SEE INSTRUCTION 11. NUMBER OF SHARES AND/OR RIGHTS REPRESENTED BY THE LOST OR DESTROYED CERTIFICATES: -------------------------- - ------------------------------------------------------------------------------- SPECIAL PAYMENT INSTRUCTIONS (SEE INSTRUCTIONS 1, 5, 6 AND 7) To be completed ONLY if certificates for shares and/or Rights (if applicable) not tendered or not accepted for payment and/or the check for the purchase price of shares and/or Rights accepted for payment are to be issued in the name of someone other than the undersigned. Issue to: [ ] Check [ ] Certificates(s) Name ------------------------------------------------------------------------- (PLEASE PRINT) Address ----------------------------------------------------------------------- ----------------------------------------------------------------------- (INCLUDE ZIP CODE) ---------------------------------------------------------------------------- (TAXPAYER IDENTIFICATION OR SOCIAL SECURITY NUMBER) - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SPECIAL DELIVERY INSTRUCTIONS (SEE INSTRUCTIONS 1, 5, 6 AND 7) To be completed ONLY if certificates for shares and/or Rights (if applicable) not tendered or not accepted for payment and/or the check for the purchase price of shares and/or Rights accepted for payment are to be sent to someone other than the undersigned, or to the undersigned at an address other than that above. Issue to: [ ] Check [ ] Certificates(s) Name ------------------------------------------------------------------------- (PLEASE PRINT) Address ----------------------------------------------------------------------- ----------------------------------------------------------------------- (INCLUDE ZIP CODE) ---------------------------------------------------------------------------- (TAXPAYER IDENTIFICATION OR SOCIAL SECURITY NUMBER) - -------------------------------------------------------------------------------- 6 7 - ------------------------------------------------------------------------------- SIGN HERE (ALSO COMPLETE SUBSTITUTE FORM W-9 BELOW) X ---------------------------------------------------------------------------- X ---------------------------------------------------------------------------- (SIGNATURE(S) OF STOCKHOLDER(S)) Dated: ------------------------------------------ (Must be signed by registered holder(s) as name(s) appear(s) on the Certificate(s) for the shares and/or Rights or on a security position listing or by person(s) authorized to become registered holder(s) by certificates and documents transmitted herewith. If signature is by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, please provide the following information and see Instruction 5.) Name(s): --------------------------------------------------------------------- (PLEASE PRINT) Capacity (Full Title): ------------------------------------------------------- Address: -------------------------------------------------------------------- ----------------------------------------------------------------------------- (INCLUDE ZIP CODE) Daytime Area Code and Telephone No.: ----------------------------------------- Taxpayer Identification or Social Security No.: -------------------------------- (SEE SUBSTITUTE FORM W-9) GUARANTEE OF SIGNATURE(S) (IF REQUIRED -- SEE INSTRUCTIONS 1 AND 5) Authorized Signature: -------------------------------------------------------- Name: ------------------------------------------------------------------------ (PLEASE PRINT) Name of Firm: ---------------------------------------------------------------- Address: --------------------------------------------------------------------- (INCLUDE ZIP CODE) Daytime Area Code and Telephone No.: ------------------------------------------ Dated: ------------------------------------------- - -------------------------------------------------------------------------------- 7 8 INSTRUCTIONS FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER 1. GUARANTEE OF SIGNATURES. Your signature on this Letter of Transmittal must be guaranteed unless (a) this Letter of Transmittal is signed by the registered holder(s) (which term, for purposes of this Instruction 1, includes any participant in the Book-Entry Transfer Facility's system whose name appears on a security position listing as the owner of the shares and/or Rights) of the shares and/or Rights tendered herewith and such registered holder(s) has not completed either the box entitled "Special Payment Instructions" or the box entitled "Special Delivery Instructions" on this Letter of Transmittal or (b) if such shares and/or Rights are tendered for the account of a financial institution (including most commercial banks, savings and loan associations and brokerage houses) that is a participant in the Security Transfer Agents Medallion Program, the New York Stock Exchange Medallion Signature Guarantee Program or the Stock Exchange Medallion Program (such participant, an "Eligible Institution"). If a signature is required, it must be provided by an Eligible Institution. See Instruction 5. 2. REQUIREMENTS OF TENDER. This Letter of Transmittal is to be completed by stockholders either if certificates are to be forwarded herewith or, unless an Agent's Message (as defined below) is utilized, if delivery of the shares and/or Rights is to be made pursuant to the procedures for book-entry transfer set forth in Section 2 of the Offer to Purchase. For a stockholder validly to tender shares and/or Rights pursuant to the Offer, either (a) a Letter of Transmittal (or a facsimile thereof), properly completed and duly executed, together with any required signature guarantees, or, in the case of a book-entry transfer, an Agent's Message, and any other required documents, must be received by the Depositary at one of its addresses set forth herein prior to the Expiration Date and either certificates for tendered shares and, if applicable, Rights must be received by the Depositary at one of such addresses or shares and/or Rights must be delivered pursuant to the procedures for book-entry transfer described herein (and a Book-Entry Confirmation received by the Depositary) or (b) the tendering stockholder must comply with the guaranteed delivery procedures described below and in Section 2 of the Offer to Purchase. If your shares and/or Rights are not immediately available or you cannot deliver your certificates and all other required documents to the Depositary or complete the procedures for book-entry transfer prior to the Expiration Date, your tender may be effected if all the following conditions are met: (i) your tender is made by or through an Eligible Institution; (ii) you ensure that a properly completed and duly executed Notice of Guaranteed Delivery, substantially in the form provided by us, is received by the Depositary, as provided below, prior to the Expiration Date; and (iii) you ensure that the certificates for all tendered shares and/or Rights, in proper form for transfer (or a Book-Entry Confirmation with respect to all such shares and/or Rights), together with a Letter of Transmittal (or a facsimile thereof), properly completed and duly executed, with any required signature guarantees, or, in the case of a book-entry transfer, an Agent's Message, and any other required documents are received by the Depositary within three trading days after the date of execution of such Notice of Guaranteed Delivery. A "trading day" is any day on which the New York Stock Exchange (the "NYSE") is open for business. The term "Agent's Message" means a message transmitted by the Book-Entry Transfer Facility to, and received by, the Depositary and forming a part of a Book-Entry Confirmation which states that such Book-Entry Transfer Facility has received an express acknowledgment from the participant in such Book-Entry Transfer Facility tendering the shares and/or Rights that such participant has received and agrees to be bound by the terms of the Letter of Transmittal and that the Purchaser may enforce such agreement against the participant. THE METHOD OF DELIVERY OF SHARES AND/OR RIGHTS, THE LETTER OF TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH THE BOOK-ENTRY TRANSFER FACILITY, IS AT THE ELECTION AND RISK OF THE TENDERING STOCKHOLDER. SHARES AND/OR RIGHTS WILL BE DEEMED DELIVERED ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY (INCLUDING, IN THE CASE OF A BOOK-ENTRY TRANSFER, BY BOOK-ENTRY CONFIRMATION). IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY. No alternative, conditional or contingent tenders will be accepted and no fractional shares will be purchased. All tendering stockholders, by execution of this Letter of Transmittal (or facsimile hereof), waive any right to receive any notice of the acceptance of their shares and/or Rights for payment. 3. INADEQUATE SPACE. If the space provided herein is inadequate, the certificate numbers and/or the number of shares and/or Rights should be listed on a separate schedule attached hereto. 4. PARTIAL TENDERS (APPLICABLE TO CERTIFICATED SHARES). If fewer than all the shares and/or Rights evidenced by any certificate submitted are to be tendered, fill in the number of shares and/or Rights that are to be tendered in the boxes entitled "Number of Shares Tendered" and "Number of Rights Tendered." In any case, new certificate(s) for the remainder of the shares and/or Rights (if applicable) that were evidenced by the old certificate(s) will be sent to the registered holder, unless otherwise provided in the appropriate box on this Letter of Transmittal, as soon as practicable after the acceptance 8 9 for payment of, and payment for, the shares and/or Rights tendered herewith. All shares and/or Rights (if applicable) represented by certificates delivered to the Depositary will be deemed to have been tendered unless otherwise indicated. 5. SIGNATURES ON LETTER OF TRANSMITTAL, STOCK POWERS AND ENDORSEMENTS. If this Letter of Transmittal is signed by the registered holder of the shares and/or Rights tendered hereby, the signature must correspond with the name as written on the face of the certificate(s) without any change whatsoever. If any of the shares and/or Rights tendered hereby are owned of record by two or more joint owners, all such owners must sign this Letter of Transmittal. If any tendered shares and/or Rights are registered in different names on several certificates, it will be necessary to complete, sign and submit as many separate Letters of Transmittal as there are different registrations of certificates. If this Letter of Transmittal or any certificates or stock powers are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, such persons should so indicate when signing, and proper evidence satisfactory to the Purchaser of their authority so to act must be submitted. When this Letter of Transmittal is signed by the registered owner(s) of the shares and/or Rights listed and transmitted hereby, no endorsements of certificates or separate stock powers are required unless payment is to be made to, or certificates for shares and/or Rights not tendered or accepted for payment are to be issued to, a person other than the registered owner(s). Signatures on such certificates or stock powers must be guaranteed by an Eligible Institution. If this Letter of Transmittal is signed by a person other than the registered owner(s) of the certificates listed, the certificates must be endorsed or accompanied by appropriate stock powers, in either case signed exactly as the name or names of the registered owner or owners appear on the certificates. Signatures on such certificates or stock powers must be guaranteed by an Eligible Institution. 6. STOCK TRANSFER TAXES. The Purchaser will pay any stock transfer taxes with respect to the transfer and sale of shares and/or Rights to it or its order pursuant to the Offer. If, however, payment of the purchase price is to be made to, or if certificates for shares and/or Rights not tendered or accepted for payment are to be registered in the name of, any person(s) other than the person(s) signing this Letter of Transmittal, the amount of any stock transfer taxes (whether imposed on the registered owner(s) or such person(s)) payable on account of the transfer to such person(s) will be deducted from the purchase price unless satisfactory evidence of the payment of such taxes or exemption therefrom is submitted. EXCEPT AS PROVIDED IN THIS INSTRUCTION 6, IT WILL NOT BE NECESSARY FOR TRANSFER TAX STAMPS TO BE AFFIXED TO THE CERTIFICATES LISTED IN THIS LETTER OF TRANSMITTAL. 7. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If a check is to be issued in the name of, and/or certificates for shares and/or Rights not accepted for payment are to be returned to, a person other than the signer of this Letter of Transmittal or if a check is to be sent and/or such certificates are to be returned to a person other than the signer of this Letter of Transmittal or to an address other than that shown above, the appropriate boxes on this Letter of Transmittal should be completed. 8. WAIVER OF CONDITIONS. The Purchaser reserves the right, subject to the terms and conditions contained in the applicable rules and regulations of the Commission, to waive any of the specified conditions of the Offer, in whole or in part, in the case of any shares or Rights tendered. 9. 31% BACKUP WITHHOLDING. In order to avoid backup withholding of Federal income tax on payments of cash pursuant to the Offer, when surrendering shares and/or Rights in the Offer, unless an exemption applies, you must provide the Depositary with your correct taxpayer identification number ("TIN") on Substitute Form W-9 below in this Letter of Transmittal and certify under penalties of perjury that such TIN is correct and that you are not subject to backup withholding. If you do not provide your correct TIN or fail to provide the certifications described above, the Internal Revenue Service (the "IRS") may impose a $50.00 penalty on you, and payment of cash to you pursuant to the Offer may be subject to backup withholding of 31%. Backup withholding is not an additional income tax. Rather, the amount of the backup withholding can be credited against the U.S. federal income tax liability of the person subject to the backup withholding, provided that the required information is given to the IRS. If backup withholding results in an overpayment of tax, a refund can be obtained by the stockholder upon filing an income tax return. You are required to give the Depositary the TIN (i.e., social security number or employer identification number) of the record owner of the shares and Rights. If the shares and/or Rights are held in more than one name or are not in the name of the actual owner, consult the enclosed "Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9" for additional guidance on which number to report. The box in Part 3 of the Substitute Form W-9 may be checked if the tendering stockholder has not been issued a TIN and has applied for a TIN or intends to apply for a TIN in the near future. If the box in Part 3 is checked, the stockholder or other payee must also complete the Certificate of Awaiting Taxpayer Identification Number below in order to avoid backup withholding. Notwithstanding that the box in Part 3 is checked and the Certificate of Awaiting Taxpayer Identification Number is completed, the Depositary will withhold 31% on all payments made prior to the time a properly certified TIN is 9 10 provided to the Depositary. However, such amounts will be refunded to such stockholder if a TIN is provided to the Depositary within 60 days. Certain stockholders (including, among others, all corporations and certain foreign individuals and entities) are not subject to backup withholding. Noncorporate foreign stockholders should complete and sign the main signature form and a Form W-8, Certificate of Foreign Status, a copy of which may be obtained from the Depositary, in order to avoid backup withholding. See the enclosed "Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9" for more instructions. 10. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions and requests for assistance or additional copies of the Offer to Purchase, this Letter of Transmittal, the Notice of Guaranteed Delivery and the Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9 may be directed to the Information Agent at its address set forth below. 11. LOST, DESTROYED OR STOLEN CERTIFICATES. If any certificate representing shares and/or Rights has been lost, destroyed or stolen, the stockholder should promptly notify the Depositary by checking the box immediately preceding the special payment/special delivery instructions and indicating the number of shares and/or Rights lost. The stockholder will then be instructed as to the steps that must be taken in order to replace the certificate. This Letter of Transmittal and related documents cannot be processed until the procedures for replacing lost or destroyed certificates have been followed. IMPORTANT: THIS LETTER OF TRANSMITTAL (OR A FACSIMILE HEREOF), TOGETHER WITH ANY REQUIRED SIGNATURE GUARANTEES, OR, IN THE CASE OF A BOOK-ENTRY TRANSFER, AN AGENT'S MESSAGE, AND ANY OTHER REQUIRED DOCUMENTS, MUST BE RECEIVED BY THE DEPOSITARY PRIOR TO THE EXPIRATION DATE AND EITHER CERTIFICATES FOR TENDERED SHARES AND/OR RIGHTS MUST BE RECEIVED BY THE DEPOSITARY OR SHARES AND/OR RIGHTS MUST BE DELIVERED PURSUANT TO THE PROCEDURES FOR BOOK-ENTRY TRANSFER, IN EACH CASE PRIOR TO THE EXPIRATION DATE, OR THE TENDERING STOCKHOLDER MUST COMPLY WITH THE PROCEDURES FOR GUARANTEED DELIVERY. 10 11 ALL TENDERING STOCKHOLDERS MUST COMPLETE THE FOLLOWING: PAYOR'S NAME: WILMINGTON TRUST COMPANY - -------------------------------------------------------------------------------- - --------------------------------------------------------------------------------------------------------------------------- SUBSTITUTE PART I -- Please provide your tin in the --------------------------------- FORM W-9 box at the right and certify by Social Security Number(s) signing and dating below. or Department of the Treasury --------------------------------- Internal Revenue Service Taxpayer Identification Number(s) -------------------------------------------------------------------------------- Payer's Request for PART II -- CERTIFICATIONS -- Under penalties of perjury, I certify that: Taxpayer Identification (1) The number shown on this form is my correct Taxpayer Identification Number Number ("TIN") (or I am waiting for a number to be issued to me) and (2) I am not subject to backup withholding because (a) I am exempt from backup withholding or (b) I have not been notified by the Internal Revenue Service ("IRS") that I am subject to backup withholding as a result of a failure to report all interest or dividends or (c) the IRS has notified me that I am no longer subject to backup withholding. -------------------------------------------------------------------------------- Part III -- Awaiting TIN [ ] -------------------------------------------------------------------------------- Part IV -- Exempt TIN [ ] - --------------------------------------------------------------------------------------------------------------------------- CERTIFICATION INSTRUCTIONS -- You must cross out item (2) in Part 2 above if you have been notified by the IRS that you are subject to backup withholding because of under reporting interest or dividends on your tax returns. However, if after being notified by the IRS that you were subject to backup withholding you received another notification from the IRS stating you are no longer subject to backup withholding, do not cross out such item (2). If you are exempt from backup withholding, check the box in Part 4. - --------------------------------------------------------------------------------------------------------------------------- SIGNATURE ___________________________________ DATE ___________________________ NAME (please print): ADDRESS (please print): - ---------------------------------------------------------------------------------------------------------------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS SUBSTITUTE FORM W-9 MAY RESULT IN BACKUP WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL INFORMATION. YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN PART 3 OF SUBSTITUTE FORM W-9. CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER I certify under penalties of perjury that a taxpayer identification number has not been issued to me, and either (a) I have mailed or delivered an application to receive a taxpayer identification number to the appropriate Internal Revenue Service Center or Social Security Administration Office or (b) I intend to mail or deliver an application in the near future. I understand that if I do not provide a taxpayer identification number to the Depositary by the time of payment, all reportable payments made to me may be subject to a 31% backup withholding tax. Signature ______________________________________ Date ______________________ 11 12 The Information Agent for the Offer is: MORROW & CO., INC. 445 Park Avenue, 5th Floor New York, New York 10022 Call Collect: (212) 754-8000 Banks and Brokerage Firms, Please Call: (800) 654-2468 Stockholders Please Call: (800) 607-0088 E-mail: barrett.info@morrowco.com The Dealer Manager for the Offer is: LEHMAN BROTHERS Three World Financial Center 200 Vesey Street New York, New York 10285 Call Collect: (212) 526-4867 or (713) 236-3965 E-mail: barrett.info@lehman.com March 12, 2001 EX-99.A1.C 4 h84893tex99-a1_c.txt NOTICE OF GUARANTEED DELIVERY 1 EXHIBIT (a)(1)(C) NOTICE OF GUARANTEED DELIVERY for Tender of Shares of Common Stock (Including the Associated Preferred Stock Purchase Rights) of BARRETT RESOURCES CORPORATION to SRM ACQUISITION COMPANY, an indirect wholly subsidiary of SHELL OIL COMPANY THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON APRIL 6, 2001, UNLESS THE OFFER IS EXTENDED As set forth in Section 2 of the Offer to Purchase (as defined below), this form or one substantially equivalent hereto must be used to accept the Offer (as defined below) if (1) certificates for shares of common stock, par value $.01 per share (the "shares"), of Barrett Resources Corporation, a Delaware corporation (the "Company"), or if applicable, certificates ("Rights Certificates") for the associated preferred stock purchase rights (the "Rights") issued pursuant to the Rights Agreement, dated as of August 5, 1997, between the Company and BankBoston, N.A., as Rights Agent, as amended, are not immediately available (including, if the Distribution Date (as defined in the Offer to Purchase) has occurred, but Rights Certificates have not yet been distributed) or (2) the procedure for book-entry transfer cannot be completed on a timely basis or time will not permit all required documents to reach the Depositary prior to the Expiration Date (as defined in Section 1 of the Offer to Purchase). Unless the context otherwise requires, all references to shares shall be deemed to include the associated Rights, and all references to the Rights shall be deemed to include the benefits that may inure to holders of the Rights pursuant to the Rights Agreement. This form may be delivered by hand to the Depositary or transmitted by telegram, facsimile transmission or mail to the Depositary and must include a guarantee by an Eligible Institution (as defined in Section 2 of the Offer to Purchase). See Section 2 of the Offer to Purchase. The Depositary for the Offer is: WILMINGTON TRUST COMPANY By Mail: By Facsimile Transmission: By Hand/Overnight Courier: Corporate Trust (302) 651-1079 Wilmington Trust Company Reorganization Services Confirmation by Telephone: 1105 North Market St., 1st Floor Wilmington Trust Company (302) 651-8869 Wilmington, Delaware 19801 P.O. Box 8861 Attn: Corporate Trust Wilmington, Delaware Reorganization Services 19899-8861
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS, OR TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE NUMBER, OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. THIS FORM IS NOT TO BE USED TO GUARANTEE SIGNATURES. IF A SIGNATURE ON A LETTER OF TRANSMITTAL IS REQUIRED TO BE GUARANTEED BY AN ELIGIBLE INSTITUTION UNDER THE INSTRUCTIONS THERETO, SUCH SIGNATURE GUARANTEE MUST APPEAR IN THE APPLICABLE SPACE PROVIDED IN THE SIGNATURE BOX ON THE LETTER OF TRANSMITTAL. 2 LADIES AND GENTLEMEN: The undersigned hereby tenders to SRM Acquisition Company, a Delaware corporation (the "Purchaser") and an indirect wholly owned subsidiary of Shell Oil Company, a Delaware corporation, upon the terms and subject to the conditions set forth in the Purchaser's Offer to Purchase dated March 12, 2001 (the "Offer to Purchase"), and the related Letter of Transmittal (which, together with any amendments or supplements thereto, collectively constitute the "Offer"), receipt of which is hereby acknowledged, the number of shares and/or Rights set forth below, all pursuant to the guaranteed delivery procedures described in Section 2 of the Offer to Purchase. Number of Shares - -------------------------------------------------------------------------------- Number of Rights - -------------------------------------------------------------------------------- Name(s) of Record Holder(s) - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- Please Print Address(es) - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- Zip Code Daytime Area Code and Tel. No.: - -------------------------------------------------------------------------------- Certificate Nos. (if available): - -------------------------------------------------------------------------------- Signature(s): - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- Dated: - -------------------------------------------------------------------------------- If Shares and/or Rights will be tendered by book-entry transfer: Account Number at Book-Entry Transfer Facility - ----------------------------------------------------------------------------- 2 3 GUARANTEE (NOT TO BE USED FOR SIGNATURE GUARANTEE) The undersigned, a participant in the Security Transfer Agents Medallion Program, the New York Stock Exchange Medallion Signature Guarantee Program or the Stock Exchange Medallion Program, hereby guarantees to deliver to the Depositary either the certificates representing the shares and/or Rights tendered hereby, in proper form for transfer, or a Book-Entry Confirmation (as defined in the Offer to Purchase) with respect to such shares, and if applicable, Rights, in any such case together with a properly completed and duly executed Letter of Transmittal (or facsimile thereof), with any required signature guarantees, or an Agent's Message (as defined in the Offer to Purchase), and any other required documents, within (1) three NYSE trading days after the date hereof or (2) in the case of the Rights, a period ending on the later of: (a) three NYSE trading days after the date hereof or (b) three business days after the date Rights Certificates are distributed to the stockholders by the Company. An "NYSE trading day" is a day on which the New York Stock Exchange is open for business. The Eligible Institution that completes this form must communicate this guarantee to the Depositary and must deliver the Letter of Transmittal and certificates for shares and/or Rights to the Depositary within the time period shown herein. Failure to do so could result in a financial loss to such Eligible Institution. Name of Firm: - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- AUTHORIZED SIGNATURE Name: - -------------------------------------------------------------------------------- PLEASE PRINT Title: - -------------------------------------------------------------------------------- Address: - -------------------------------------------------------------------------------- ZIP CODE Area Code and Tel. No.: - -------------------------------------------------------------------------------- Dated: - -------------------------------------------------------------------------------- NOTE: DO NOT SEND CERTIFICATES FOR SHARES OR RIGHTS WITH THIS NOTICE. CERTIFICATES FOR SHARES OR RIGHTS SHOULD BE SENT WITH YOUR LETTER OF TRANSMITTAL. 3 EX-99.A1.D 5 h84893tex99-a1_d.txt LETTER TO BROKERS, DEALERS, COMMERCIAL BANKS 1 EXHIBIT (a)(1)(D) Offer to Purchase for Cash All Outstanding Shares of Common Stock (Including the Associated Preferred Stock Purchase Rights) of BARRETT RESOURCES CORPORATION at $55.00 Net Per Share by SRM ACQUISITION COMPANY, an indirect wholly owned subsidiary of SHELL OIL COMPANY THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON APRIL 6, 2001, UNLESS THE OFFER IS EXTENDED. March 12, 2001 To Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees: We have been appointed by SRM Acquisition Company, a Delaware corporation (the "Purchaser") and an indirect wholly owned subsidiary of Shell Oil Company, a Delaware corporation ("Shell"), to act as Dealer Manager in connection with the Purchaser's offer to purchase (1) all outstanding shares of common stock, par value $.01 per share (the "shares"), of Barrett Resources Corporation, a Delaware corporation (the "Company"), and (2) the associated preferred stock purchase rights (the "Rights") outstanding under the Rights Agreement (the "Rights Agreement") dated as of August 5, 1997 by and between the Company and BankBoston, N.A., as Rights Agent, as amended, at $55.00 per share, net to the seller in cash, upon the terms and subject to the conditions set forth in the Purchaser's Offer to Purchase dated March 12, 2001 (the "Offer to Purchase"), and the related Letter of Transmittal (which, together with any supplements or amendments thereto, collectively constitute the "Offer"). Unless the context otherwise requires, all references to shares shall be deemed to include the associated Rights, and all references to the Rights shall be deemed to include the benefits that may inure to holders of the Rights pursuant to the Rights Agreement. Unless the Rights are redeemed prior to the Expiration Date (as defined in the Offer to Purchase), holders of shares will be required to tender one associated Right for each share tendered in order to effect a valid tender of such share. Accordingly, stockholders who sell their Rights separately from their shares and do not otherwise acquire Rights may not be able to satisfy the requirements of the Offer for the tender of shares. If the Distribution Date (as defined in the Offer to Purchase) has not occurred prior to the Expiration Date, a tender of shares will also constitute a tender of the associated Rights. If the Distribution Date has occurred and Rights Certificates (as defined in the Offer to Purchase) have been distributed to holders of shares prior to the time a holder's shares are purchased pursuant to the Offer, in order for Rights (and the corresponding shares) to be validly tendered, Rights Certificates representing a number of Rights equal to the number of shares tendered must be delivered to the Depositary (as defined below) or, if available, a Book-Entry Confirmation (as defined in the Offer to Purchase) must be received by the Depositary with respect thereto. If the Distribution Date has occurred and Rights Certificates have not been distributed prior to the time shares are purchased pursuant to the Offer, Rights may be tendered prior to a stockholder receiving Rights Certificates by use of the guaranteed delivery procedure described in Section 2 of the Offer to Purchase. In any case, a tender of shares constitutes an agreement by the tendering stockholder to deliver Rights Certificates representing a number of Rights equal to the number of shares tendered pursuant to the Offer to the Depositary within a period ending on the later of (1) three trading days after the date of execution of the Notice of Guaranteed Delivery and (2) three business days after the date Rights Certificates are 2 distributed. A "trading day" is a day on which the New York Stock Exchange is open for business. The Purchaser reserves the right to require that the Depositary receive Rights Certificates, or a Book-Entry Confirmation, if available, with respect to such Rights prior to accepting the related shares for payment pursuant to the Offer if the Distribution Date has occurred prior to the Expiration Date. If a stockholder desires to tender shares and Rights pursuant to the Offer and such stockholder's share certificates or, if applicable, Rights Certificates, are not immediately available (including, if the Distribution Date has occurred, but Rights Certificates have not yet been distributed) or time will not permit all required documents to reach the Depositary prior to the Expiration Date or the procedures for book-entry transfer cannot be completed on a timely basis, such shares or Rights may nevertheless be tendered according to the guaranteed delivery procedures set forth in Section 2 of the Offer to Purchase. See Instruction 2 of the Letter of Transmittal. Delivery of documents to the Book-Entry Transfer Facility (as defined in the Offer to Purchase) in accordance with the Book-Entry Transfer Facility's procedures does not constitute delivery to the Depositary. THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (1) THERE BEING VALIDLY TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION DATE THAT NUMBER OF SHARES THAT, TOGETHER WITH ANY SHARES OWNED BY THE PURCHASER, SHELL OR SHELL'S OTHER DIRECT OR INDIRECT SUBSIDIARIES, WOULD REPRESENT AT LEAST A MAJORITY OF ALL OUTSTANDING SHARES ON A FULLY DILUTED BASIS ON THE DATE OF PURCHASE, (2) THE COMPANY'S RIGHTS HAVING BEEN REDEEMED BY THE BOARD OF DIRECTORS OF THE COMPANY, OR THE PURCHASER BEING SATISFIED, IN ITS SOLE DISCRETION, THAT THE RIGHTS HAVE BEEN INVALIDATED OR ARE OTHERWISE INAPPLICABLE TO THE OFFER AND THE PROPOSED MERGER (AS DEFINED IN THE OFFER TO PURCHASE), (3) THE ACQUISITION OF SHARES PURSUANT TO THE OFFER AND THE PROPOSED MERGER HAVING BEEN APPROVED PURSUANT TO SECTION 203 OF THE DELAWARE GENERAL CORPORATION LAW ("SECTION 203"), OR THE PURCHASER BEING SATISFIED, IN ITS SOLE DISCRETION, THAT THE PROVISIONS OF SECTION 203 ARE OTHERWISE INAPPLICABLE TO THE ACQUISITION OF THE SHARES PURSUANT TO THE OFFER AND THE PROPOSED MERGER, (4) THE PURCHASER BEING SATISFIED, IN ITS SOLE DISCRETION, THAT THE PROVISIONS OF ARTICLE IV OF THE COMPANY'S BYLAWS ARE INAPPLICABLE TO THE ACQUISITION OF SHARES PURSUANT TO THE OFFER AND THE PROPOSED MERGER AND (5) THE WAITING PERIODS UNDER THE HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT OF 1976 APPLICABLE TO THE PURCHASE OF SHARES UNDER THE OFFER HAVING EXPIRED OR BEEN TERMINATED. CERTAIN OTHER CONDITIONS TO THE OFFER ARE DESCRIBED IN SECTIONS 14 AND 15 OF THE OFFER TO PURCHASE. Please furnish copies of the enclosed materials to those of your clients for whom you hold shares and Rights registered in your name or in the name of your nominee. Enclosed herewith are copies of the following documents: 1. The Offer to Purchase dated March 12, 2001; 2. The Letter of Transmittal to be used by stockholders of the Company accepting the Offer; 3. A printed form of letter that may be sent to your clients for whose account you hold shares and Rights in your name or in the name of a nominee, with space provided for obtaining such client's instructions with regard to the Offer; 4. The Notice of Guaranteed Delivery; 5. Guidelines of the Internal Revenue Service for Certification of Taxpayer Identification Number on Substitute Form W-9; and 6. A return envelope addressed to Wilmington Trust Company, the Depositary. WE URGE YOU TO CONTACT YOUR CLIENTS PROMPTLY. PLEASE NOTE THAT THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON APRIL 6, 2001, UNLESS THE OFFER IS EXTENDED. In all cases, payment for shares and Rights accepted for payment pursuant to the Offer will be made only after timely receipt by Wilmington Trust Company (the "Depositary") of (a) certificates for (or a timely Book-Entry Confirmation (as defined in the Offer to Purchase) with respect to) such shares and Rights, (b) a Letter of Transmittal (or a facsimile thereof), properly completed and duly executed, with any required signature guarantees, or, in the case of a book-entry transfer effected pursuant to the procedures described in Section 2 of the Offer to Purchase, an Agent's Message (as defined 2 3 in the Offer to Purchase), and (c) any other documents required by the Letter of Transmittal. Accordingly, tendering stockholders may be paid at different times depending upon when certificates for shares or Rights, if applicable, or Book- Entry Confirmations with respect to shares or, if applicable, Rights are actually received by the Depositary. THE PURCHASER SHALL NOT HAVE ANY OBLIGATION TO PAY INTEREST ON THE PURCHASE PRICE FOR TENDERED SHARES, WHETHER OR NOT THE PURCHASER EXERCISES ITS RIGHT TO EXTEND THE OFFER. Neither the Purchaser nor Shell will pay any fees or commissions to any broker or dealer or other person (other than the Dealer Manager (as defined in the Offer to Purchase) and the Information Agent (as defined in the Offer to Purchase) in connection with the solicitation of tenders of shares pursuant to the Offer. You will be reimbursed upon request for customary mailing and handling expenses incurred by you in forwarding the enclosed offering materials to your customers. Questions and requests for additional copies of the enclosed material may be directed to the Information Agent or the Dealer Manager at their respective addresses and telephone numbers set forth on the back cover of the enclosed Offer to Purchase. Very truly yours, LEHMAN BROTHERS NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL RENDER YOU OR ANY OTHER PERSON THE AGENT OF THE PURCHASER, SHELL, THE DEALER MANAGER, THE DEPOSITARY, THE INFORMATION AGENT OR ANY AFFILIATE THEREOF OR AUTHORIZE YOU OR ANY OTHER PERSON TO GIVE ANY INFORMATION OR USE ANY DOCUMENT OR MAKE ANY STATEMENTS ON BEHALF OF ANY OF THEM WITH RESPECT TO THE OFFER OTHER THAN THE ENCLOSED DOCUMENTS AND THE STATEMENT CONTAINED THEREIN. 3 EX-99.A1.E 6 h84893tex99-a1_e.txt LETTER TO CLIENTS FOR USE BY BROKERS, DEALERS 1 EXHIBIT (a)(1)(E) Offer to Purchase for Cash All Outstanding Shares of Common Stock (Including the Associated Preferred Stock Purchase Rights) of BARRETT RESOURCES CORPORATION at $55.00 Net Per Share by SRM ACQUISITION COMPANY, an indirect wholly owned subsidiary of SHELL OIL COMPANY THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON APRIL 6, 2001, UNLESS THE OFFER IS EXTENDED. March 12, 2001 To Our Clients: Enclosed for your consideration is an Offer to Purchase dated March 12, 2001 (the "Offer to Purchase"), and a related Letter of Transmittal (which, together with any amendments or supplements thereto, collectively constitute the "Offer") relating to an offer by SRM Acquisition Company, a Delaware corporation (the "Purchaser") and an indirect wholly owned subsidiary of Shell Oil Company, a Delaware corporation ("Shell"), to purchase (1) shares of common stock, par value $.01 per share (the "shares"), of Barrett Resources Corporation, a Delaware corporation (the "Company"), and (2) the associated preferred stock purchase rights (the "Rights") outstanding under the Rights Agreement, dated as of August 5, 1997, as amended, by and between the Company and BankBoston, N.A., as Rights Agent (the "Rights Agreement"), at $55.00 per share, net to the seller in cash, upon the terms and subject to the conditions set forth in the Offer. Unless the content otherwise requires, all references to the shares shall be deemed to include the Rights, and all references to the Rights shall be deemed to include the benefits that may inure to holders of the Rights pursuant to the Rights Agreement. Unless the Rights are redeemed prior to the Expiration Date (as defined below), holders of shares will be required to tender one Right for each share tendered in order to effect a valid tender of such share. Accordingly, stockholders who sell their Rights separately from their shares and do not otherwise acquire Rights may not be able to satisfy the requirements of the Offer for the tender of shares. If the Distribution Date (as defined in the Offer to Purchase) has not occurred prior to the Expiration Date, a tender of shares will also constitute a tender of the associated Rights. If the Distribution Date has occurred and Rights Certificates (as defined in the Offer to Purchase) have been distributed to holders of shares prior to the time a holder's shares are purchased pursuant to the Offer, in order for Rights (and the corresponding shares) to be validly tendered, Rights Certificates representing a number of Rights equal to the number of shares tendered must be delivered to the Depositary (as defined below) or, if available, a Book-Entry Confirmation (as defined in the Offer to Purchase) must be received by the Depositary with respect thereto. If the Distribution Date has occurred and Rights Certificates have not been distributed prior to the time shares are purchased pursuant to the Offer, Rights may be tendered prior to a stockholder receiving Rights Certificates by use of the guaranteed delivery procedure described in Section 2 of the Offer to Purchase. In any case, a tender of shares constitutes an agreement by the tendering stockholder to deliver Rights Certificates representing a number of Rights equal to the number of shares tendered pursuant to the Offer to the Depositary within a period ending on the later of (1) three trading days after the date of execution of the Notice of Guaranteed Delivery or (2) three business days after the date Rights Certificates are distributed. A "trading day" is a day on which the New York Stock Exchange is open for business. The Purchaser reserves the right to require that the Depositary receive Rights Certificates, or a Book-Entry Confirmation, if available, with respect to such Rights prior to accepting the related shares for payment pursuant to the Offer if the Distribution Date has occurred prior to the Expiration Date. If a stockholder desires to tender shares and Rights pursuant to the Offer and such stockholder's share Certificates (as defined in the Offer to Purchase) or, if applicable, Rights Certificates are not immediately available (including, if the Distribution Date has occurred, but Rights Certificates have not yet been distributed) or time will not permit all required 2 documents to reach the Depositary prior to the Expiration Date or the procedures for book-entry transfer cannot be completed on a timely basis, such shares or Rights may nevertheless be tendered according to the guaranteed delivery procedures set forth in Section 2 of the Offer to Purchase. See Instruction 2 of the Letter of Transmittal. Delivery of documents to the Book-Entry Transfer Facility (as defined in the Offer to Purchase) in accordance with the Book-Entry Transfer Facility's procedures does not constitute delivery to the Depositary. WE ARE THE HOLDER OF RECORD OF SHARES AND RIGHTS HELD BY US FOR YOUR ACCOUNT. A TENDER OF SUCH SHARES AND RIGHTS CAN BE MADE ONLY BY US AS THE HOLDER OF RECORD AND PURSUANT TO YOUR INSTRUCTIONS. THE LETTER OF TRANSMITTAL IS FURNISHED TO YOU FOR YOUR INFORMATION ONLY AND CANNOT BE USED TO TENDER SHARES HELD BY US FOR YOUR ACCOUNT. We request instructions as to whether you wish to tender any of or all the shares and Rights held by us for your account, pursuant to the terms and conditions set forth in the Offer. Your attention is directed to the following: 1. The tender price is $55.00 per share, including the associated Right, net to the seller in cash, upon the terms and subject to the conditions set forth in the Offer. 2. The Offer is being made for all outstanding shares. 3. The Offer is conditioned upon, among other things, (1) there being validly tendered and not properly withdrawn prior to the Expiration Date that number of shares that, together with any shares owned by the Purchaser, Shell or Shell's other direct or indirect subsidiaries, would represent at least a majority of all outstanding shares on a fully diluted basis on the date of purchase, (2) the Company's Board of Directors redeeming the Rights or the Purchaser being satisfied, in its sole discretion, that the Rights have been invalidated or are otherwise inapplicable to the Offer and Proposed Merger (as defined in the Offer to Purchase), (3) the acquisition of shares pursuant to the Offer and the Proposed Merger having been approved pursuant to Section 203 of the Delaware General Corporation Law, or the Purchaser being satisfied, in its sole discretion, that the provisions of Section 203 are otherwise inapplicable to the acquisition of the shares pursuant to the Offer and the Proposed Merger, (4) the Purchaser being satisfied, in its sole discretion, that the provisions of Article IV of the Company's bylaws are inapplicable to the acquisition of shares pursuant to the offer and the proposed merger and (5) any applicable waiting periods under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 applicable to the purchase of shares under the offer having expired or been terminated. Certain other conditions to the Offer are described in Sections 14 and 15 of the Offer to Purchase. 4. The Offer and withdrawal rights will expire at 12:00 Midnight, New York City time, on April 6, 2001, unless the Offer is extended by the Purchaser (such date, as may be so extended, the "Expiration Date"). 5. The Purchaser will pay any stock transfer taxes with respect to the transfer and sale of shares to it or its order pursuant to the Offer, except as otherwise provided in Instruction 6 of the Letter of Transmittal. If you wish to have us tender any of or all your shares and Rights, please so instruct us by completing, executing, detaching and returning to us the instruction form set forth below. An envelope to return your instructions to us is enclosed. If you authorize tender of your shares and Rights, all such shares and Rights will be tendered unless otherwise specified below. Your instructions to us should be forwarded promptly to permit us to submit a tender on your behalf prior to the expiration of the Offer. In all cases, payment for shares and Rights accepted for payment pursuant to the Offer will be made only after timely receipt by Wilmington Trust Company (the "Depositary"), of (1) certificates for (or a timely Book-Entry confirmation (as defined in the Offer to Purchase) with respect to) such shares and Rights, (2) a Letter of Transmittal (or a facsimile thereof), properly completed and duly executed, with any required signature guarantees, or, in the case of a book-entry transfer effected pursuant to the procedures described in Section 2 of the Offer to Purchase, an Agent's Message (as defined in the Offer to Purchase), and (3) any other documents required by the Letter of Transmittal. Accordingly, tendering stockholders may be paid at different times depending upon when certificates for the shares and Rights or Book-Entry Confirmations with respect to the shares and Rights are actually received by the Depositary. THE PURCHASER SHALL NOT HAVE ANY OBLIGATION TO PAY INTEREST ON THE PURCHASE PRICE FOR TENDERED SHARES, WHETHER OR NOT THE PURCHASER EXERCISES ITS RIGHT TO EXTEND THE OFFER. The Offer is not being made to, nor will tenders be accepted from or on behalf of, holders of shares or Rights in any jurisdiction in which the making or acceptance of the Offer would not be in compliance with the laws of such jurisdiction. 2 3 INSTRUCTIONS WITH RESPECT TO THE OFFER TO PURCHASE ALL OUTSTANDING SHARES OF COMMON STOCK (INCLUDING THE ASSOCIATED PREFERRED SHARE PURCHASE RIGHTS) OF BARRETT RESOURCES CORPORATION AT $55.00 NET PER SHARE BY SRM ACQUISITION COMPANY, AN INDIRECT WHOLLY OWNED SUBSIDIARY OF SHELL OIL COMPANY The undersigned acknowledges receipt of your letter enclosing the Offer to Purchase, dated March 12, 2001, of SRM Acquisition Company, a Delaware corporation and an indirect wholly owned subsidiary of Shell Oil Company, a Delaware corporation, and the related Letter of Transmittal, relating to (1) shares of common stock, par value $.01 per share of the Company, a Delaware corporation, and (2) unless and until validly redeemed by the Board of Directors of the Company, the related rights (the "Rights") to purchase preferred stock of the Company issued pursuant to the Rights Agreement, dated as of August 5, 1997, as amended, by and between the Company and BankBoston, N.A. This will instruct you to tender the number of shares and Rights indicated below held by you for the account of the undersigned on the terms and conditions set forth in such Offer to Purchase and the related Letter of Transmittal. Dated: 2001 - -------------------------------------------, Number of Shares and Rights to be Tendered* Shares - ---------------------------------------------------- Rights - --------------------------------------------------- - ---------------------------------------------------------- - ---------------------------------------------------------- SIGNATURE(S) - ---------------------------------------------------------- - ---------------------------------------------------------- PLEASE PRINT NAME(S) Address - ---------------------------------------------------------- - ---------------------------------------------------------- - ---------------------------------------------------------- - ---------------------------------------------------------- (INCLUDE ZIP CODE) Area Code and Telephone No. - ---------------------------------------------------------- Taxpayer Identification or Social Security No. - ------------------------------------- - --------------- * Unless otherwise indicated, it will be assumed that all your shares and Rights are to be tendered. 3 EX-99.A1.F 7 h84893tex99-a1_f.txt GUIDELINES FOR CERTIFICATION - FORM W-9 1 EXHIBIT (a)(1)(F) GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER FOR THE PAYEE (YOU) TO GIVE THE TAXPAYER -- Social Security Numbers have nine digits separated by two hyphens: i.e., 000-00-0000. Employer identification numbers have nine digits separated by only one hyphen: i.e., 00-0000000. The table below will help determine the number to give the payer. All "Section" references are to the Internal Revenue Code of 1986, as amended. "IRS" is the Internal Revenue Service. - ----------------------------------------------------------- GIVE THE NAME AND SOCIAL SECURITY FOR THIS TYPE OF ACCOUNT: NUMBER OF-- - ----------------------------------------------------------- 1. Individual The individual 2. Two or more individuals (joint The actual owner account) of the account or, if combined funds, the first individual on the account(1) 3. Custodian account of a minor The minor(2) (Uniform Gift to Minors Act) 4. a. The usual revocable savings The grantor- trust account (grantor is also trustee(1) trustee) b. So-called trust account that is The actual not a legal or valid trust owner(1) under state law 5. Sole proprietorship The owner(3) - ----------------------------------------------------------- - ----------------------------------------------------------- GIVE THE NAME AND EMPLOYER IDENTIFICATION FOR THIS TYPE OF ACCOUNT: NUMBER OF-- - ----------------------------------------------------------- 6. Sole proprietorship The owner(3) 7. A valid trust, estate, or pension The legal trust entity(4) 8. Corporate The corporation 9. Association, club, religious, The organization charitable, educational, or other tax-exempt organization 10. Partnership The partnership 11. A broker or registered nominee The broker or nominee 12. Account with the Department of The public entity Agriculture in the name of a public entity (such as a state or local government, school district, or prison) that receives agricultural program payments - -----------------------------------------------------------
(1) List first and circle the name of the person whose number you furnish. If only one person on a joint account has a social security number, that person's number must be furnished. (2) Circle the minor's name and furnish the minor's social security number. (3) You must show your individual name, but you may also enter your business or "doing business as" name. You may use either your social security number or your employer identification number (if you have one). (4) List first and circle the name of the legal trust, estate, or pension trust. (Do not furnish the taxpayer identification number of the personal representative or trustee unless the legal entity itself is not designated in the account title.) NOTE: If no name is circled when there is more than one name listed, the number will be considered to be that of the first name listed. 2 GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 OBTAINING A NUMBER If you don't have a taxpayer identification number, obtain Form SS-5, Application for a Social Security Card at the local Social Security Administration office, or Form SS-4, Application for Employer Identification Number, by calling 1 (800) TAX-FORM, and apply for a number. PAYEES EXEMPT FROM BACKUP WITHHOLDING Payees specifically exempted from withholding include: - An organization exempt from tax under Internal Revenue Code of 1986, as amended, section ("Section") 501(a), an individual retirement account (IRA), or a custodial account under Section 403(b)(7), if the account satisfies the requirements of Section 401(f)(2). - The United States or a state thereof, the District of Columbia, a possession of the United States, or a political subdivision or wholly-owned agency or instrumentality of any one or more of the foregoing. - An international organization or any agency or instrumentality thereof. - A foreign government and any political subdivision, agency or instrumentality thereof. Payees that may be exempt from backup withholding include: - A corporation. - A financial institution. - A dealer in securities or commodities required to register in the United States, the District of Columbia, or a possession of the United States. - A real estate investment trust. - A common trust fund operated by a bank under Section 584(a). - An entity registered at all times during the tax year under the Investment Company Act of 1940. - A middleman known in the investment community as a nominee or who is listed in the most recent publication of the American Society of Corporate Secretaries, Inc., Nominee List. - A futures commission merchant registered with the Commodity Futures Trading Commission. - A foreign central bank of issue. Payments of dividends and patronage dividends generally exempt from backup withholding include: - Payments to nonresident aliens subject to withholding under Section 1441. - Payments to partnerships not engaged in a trade or business in the United States and that have at least one non-resident alien partner. - Payments of patronage dividends not paid in money. - Payments made by certain foreign organizations. - Section 404(k) distributions made by an ESOP. Payments of interest generally exempt from backup withholding include: - Payments of tax-exempt interest (including exempt-interest dividends under Section 852). - Payments described in Section 6049(b)(5) to nonresident aliens. - Payments on tax-free covenant bonds under Section 1451. - Payments made by certain foreign organizations. Certain payments, other than payments of interest, dividends, and patronage dividends, that are exempt from information reporting are also exempt from backup withholding. For details, see Sections 6041, 6041A, 6042, 6044, 6045, 6049, 6050A and 6050N and the regulations thereunder. EXEMPT PAYEES SHOULD COMPLETE A SUBSTITUTE FORM W-9 TO AVOID POSSIBLE ERRONEOUS BACKUP WITHHOLDING. Furnish your taxpayer identification number, write "EXEMPT" on the form, sign and date the form and return it to the payer. PRIVACY ACT NOTICE.--Section 6109 requires you to provide your correct taxpayer identification number to payers who must report the payments to the IRS. The IRS uses the numbers for identification purposes and to help verify the accuracy of your return and may also provide this information to various government agencies for tax enforcement or litigation purposes. Payers must be given the numbers whether or not recipients are required to file tax returns. Payers must generally withhold 31% of taxable interest, dividend, and certain other payments to a payee who does not furnish a taxpayer identification number to a payer. Certain penalties may also apply. PENALTIES (1) FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER.--If you fail to furnish your taxpayer identification number to a payer, you are subject to a penalty of $50 for each such failure unless your failure is due to reasonable cause and not to willful neglect. (2) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING.--If you make a false statement with no reasonable basis that results in no backup withholding, you are subject to a $500 penalty. (3) CRIMINAL PENALTY FOR FALSIFYING INFORMATION.--Willfully falsifying certifications or affirmations may subject you to criminal penalties including fines and/or imprisonment. FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL REVENUE SERVICE. EX-99.A1.G 8 h84893tex99-a1_g.txt PRESS RELEASE ISSUED BY SHELL OIL COMPANY 1 EXHIBIT (a)(1)(G) SHELL OIL COMPANY COMMENCES TENDER OFFER FOR BARRETT RESOURCES AT $55 PER SHARE IN CASH HOUSTON (MARCH 12, 2001) -- Shell Oil Company (Shell), a wholly-owned member of the Royal Dutch/Shell Group, today announced that it has commenced a tender offer for all outstanding shares of Barrett Resources Corporation (Barrett) at $55 per share in cash. The offer price for the Common Stock represents a 24 percent premium over Barrett's market price of $44.25 per share on Feb. 28, 2001, the last trading day prior to Shell's initial acquisition proposal. "We consider it a positive sign that Peter Dea and Barrett's Board of Directors have said they are considering strategic alternatives, but it is not clear that they are committed to the sale of the company," said Walter van de Vijver, president and CEO of Shell Exploration & Production Company, the exploration and production arm of Shell Oil Company. "That is why Shell has chosen to take its offer directly to the Barrett shareholders rather than participate in the auction process proposed by Barrett's Board. We continue to believe that the best choice is to accept our fully funded cash offer. "We also note that Barrett's board has not said that our $55 per share offer is inadequate, so we assume that they and their advisors have concluded that our offer is in an appropriate range," he continued. "We have decided to make our tender offer available to shareholders today because we continue to believe that our fully funded cash offer represents a full and fair value for the company. "We are concerned, as their shareholders also may be, that the prolonged auction process could be a distraction to Barrett's employees and have an adverse impact on their ability to effectively operate the business. Under the auction process Barrett has established, it could take over two months before Barrett shareholders know whether or not they have any further options," Mr. van de Vijver added. Shell's tender offer is conditioned upon, among other things, the acquisition of at least a majority of the outstanding shares. The tender offer and withdrawal rights will expire at midnight (EDT) on April 6, 2001, unless extended. The offer is not contingent on the receipt of financing. The terms and conditions of the offer will be set forth in tender offer materials being filed today with the Securities and Exchange Commission to be mailed promptly to Barrett shareholders. Lehman Brothers Inc. is acting as Dealer Manager for the Shell offer, and Morrow & Co., Inc. is acting as Information Agent. ABOUT BARRETT RESOURCES CORPORATION Barrett Resources Corporation is a Denver-based independent natural gas and oil exploration and production company. Barrett's properties are focused primarily in the Rocky Mountain region of Colorado, Wyoming and Utah, the Mid-Continent area of Kansas, Oklahoma, New Mexico and Texas, and the Gulf of Mexico region of offshore Texas and Louisiana. The company has over 200 employees and reported 2000 revenues of $376 million from oil and gas operations. (Source: Barrett earnings release of March 1, 2001, and the Barrett web site.) ABOUT SHELL EXPLORATION & PRODUCTION COMPANY Shell Exploration & Production Company (SEPCo) is a wholly-owned subsidiary of Shell Oil Company based in Houston. SEPCo is responsible for exploring, developing, and producing oil and natural gas in the U.S., with principal operations in the Gulf of Mexico, Michigan and South Texas. SEPCo is currently the third largest U.S. natural gas producer. THIS PRESS RELEASE IS NEITHER AN OFFER TO PURCHASE NOR A SOLICITATION OF AN OFFER TO SELL SECURITIES. THE TENDER OFFER WILL BE MADE ONLY THROUGH AN OFFER TO PURCHASE AND RELATED LETTER OF TRANSMITTAL. INVESTORS AND SECURITY HOLDERS ARE STRONGLY ADVISED TO READ THE TENDER OFFER STATEMENT REGARDING THE TENDER OFFER REFERRED TO IN THIS PRESS RELEASE, WHEN IT BECOMES AVAILABLE, BECAUSE IT WILL CONTAIN IMPORTANT INFORMATION. 2 THE TENDER OFFER STATEMENT WILL BE FILED BY SHELL OIL COMPANY WITH THE SECURITIES AND EXCHANGE COMMISSION (SEC). INVESTORS AND SECURITY HOLDERS MAY OBTAIN A FREE COPY OF THE TENDER OFFER STATEMENT (WHEN AVAILABLE) AND OTHER RELEVANT DOCUMENTS ON THE SEC'S WEB SITE. SHELL OIL COMPANY IS FILING A PRELIMINARY CONSENT STATEMENT AND OTHER SOLICITATION MATERIALS WITH THE SEC RELATING TO SHELL OIL COMPANY'S SOLICITATION OF WRITTEN CONSENTS FROM THE SHAREHOLDERS OF BARRETT RESOURCES CORPORATION. INVESTORS AND SECURITY HOLDERS ARE STRONGLY ADVISED TO READ THE DEFINITIVE CONSENT STATEMENT, WHEN AVAILABLE, BECAUSE IT WILL CONTAIN IMPORTANT INFORMATION. THE DEFINITIVE CONSENT STATEMENT WILL BE FILED BY SHELL OIL COMPANY WITH THE SEC. INVESTORS AND SECURITY HOLDERS CAN OBTAIN A FREE COPY OF THE CONSENT STATEMENT (WHEN AVAILABLE) AND OTHER RELEVANT DOCUMENTS ON THE SEC'S WEB SITE. IN ADDITION, THE IDENTITY OF PEOPLE WHO, UNDER SEC RULES, MAY BE CONSIDERED "PARTICIPANTS IN THE SOLICITATION" OF BARRETT STOCKHOLDERS AND THEIR HOLDINGS OF BARRETT COMMON STOCK ARE CONTAINED IN SHELL OIL COMPANY'S FILINGS WITH THE SEC UNDER REGULATION 14A. THIS PRESS RELEASE CONTAINS FORWARD-LOOKING STATEMENTS THAT ARE BASED ON SHELL'S CURRENT EXPECTATIONS, ESTIMATES AND PROJECTIONS. WORDS SUCH AS "EXPECTS," "ANTICIPATES," "FORECASTS," "INTENDS," "PLANS," "BELIEVES," "PROJECTS," AND "ESTIMATES," AND VARIATIONS OF SUCH WORDS AND SIMILAR EXPRESSIONS ARE INTENDED TO IDENTIFY SUCH FORWARD-LOOKING STATEMENTS. THESE STATEMENTS ARE NOT GUARANTEES OF FUTURE PERFORMANCE AND INVOLVE RISKS AND UNCERTAINTIES AND ARE BASED ON A NUMBER OF ASSUMPTIONS THAT COULD ULTIMATELY PROVE INACCURATE AND, THEREFORE, THERE CAN BE NO ASSURANCE THAT THEY WILL PROVE TO BE ACCURATE. ACTUAL RESULTS AND OUTCOMES MAY VARY MATERIALLY FROM WHAT IS EXPRESSED OR FORECAST IN SUCH STATEMENTS. AMONG THE FACTORS THAT COULD CAUSE ACTUAL RESULTS TO DIFFER MATERIALLY ARE CHANGES IN NATURAL GAS PRICES, CHANGES IN COMPETITIVE OR ECONOMIC CONDITIONS AFFECTING SUPPLY AND DEMAND FOR GAS, PENDING OR FUTURE LITIGATION, CHANGES IN CURRENT LAWS AND REGULATIONS, AND GENERAL DOMESTIC AND INTERNATIONAL ECONOMIC AND POLITICAL CONDITIONS. SHELL OIL COMPANY UNDERTAKES NO OBLIGATION TO UPDATE PUBLICLY AND FORWARD-LOOKING STATEMENTS, WHETHER AS A RESULT OF NEW INFORMATION, FUTURE EVENTS OR OTHERWISE. MEDIA/INVESTOR CONTACTS: Kitty Borah/Stacy Hutchinson Shell Oil Media Relations (713) 241-4544 David Sexton Shell Oil Investor Relations (212) 218-3112 2 EX-99.A1.I 9 h84893tex99-a1_i.txt SUMMARY ADVERTISEMENT PUBLISHED 3/12/01 1 EXHIBIT (a)(1)(I) THIS ANNOUNCEMENT IS NEITHER AN OFFER TO PURCHASE NOR A SOLICITATION OF AN OFFER TO SELL SHARES OR RIGHTS. THE OFFER IS MADE SOLELY BY THE OFFER TO PURCHASE DATED MARCH 12, 2001 (THE "OFFER TO PURCHASE") AND THE RELATED LETTER OF TRANSMITTAL AND IS NOT BEING MADE TO (NOR WILL TENDERS BE ACCEPTED FROM OR ON BEHALF OF) HOLDERS OF SHARES OR RIGHTS IN ANY JURISDICTION IN WHICH THE MAKING OF THE OFFER OR THE ACCEPTANCE THEREOF WOULD NOT BE IN COMPLIANCE WITH THE LAWS OF SUCH JURISDICTION. NOTICE OF OFFER TO PURCHASE FOR CASH ALL OUTSTANDING SHARES OF COMMON STOCK (INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS) OF BARRETT RESOURCES CORPORATION AT $55.00 NET PER SHARE BY SRM ACQUISITION COMPANY, AN INDIRECT WHOLLY OWNED SUBSIDIARY OF SHELL OIL COMPANY SRM Acquisition Company, a Delaware corporation (the "Purchaser") and an indirect wholly owned subsidiary of Shell Oil Company, a Delaware corporation ("Shell"), is offering to purchase (1) all outstanding shares of common stock, par value $.01 per share (the "Shares"), of Barrett Resources Corporation, a Delaware corporation (the "Company"), and (2) unless and until validly redeemed by the Board of Directors of the Company, the associated preferred stock purchase rights (the "Rights") outstanding under the Company's Rights Agreement dated August 5, 1997, as amended, between the Company and BankBoston, N.A., as Rights Agent (the "Rights Agreement"), at a price of $55.00 per share, net to the seller in cash, without interest thereon, upon the terms and subject to the conditions set forth in the Offer to Purchase and in the related Letter of Transmittal (which, together with any amendments or supplements thereto, collectively constitute the "Offer"). Unless the context otherwise requires, all references to Shares include the associated Rights, and all references to the Rights include the benefits that may inure to holders of the Rights pursuant to the Rights Agreement. Unless the Rights are redeemed prior to the Expiration Date (as defined herein), holders of Shares will be required to tender one associated Right for each Share tendered in order to effect a valid tender of such Share. Accordingly, stockholders who sell their Rights separately from their Shares and do not otherwise acquire Rights may not be able to satisfy the requirements of the Offer for the tender of Shares. THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON APRIL 6, 2001, UNLESS THE OFFER IS EXTENDED. THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (1) THERE BEING VALIDLY TENDERED AND NOT PROPERLY WITHDRAWN PRIOR TO THE EXPIRATION DATE THAT NUMBER OF SHARES THAT, TOGETHER WITH ANY SHARES OWNED BY THE PURCHASER, SHELL OR SHELL'S OTHER DIRECT OR INDIRECT SUBSIDIARIES, WOULD REPRESENT AT LEAST A MAJORITY OF ALL OUTSTANDING SHARES ON A FULLY DILUTED BASIS ON THE DATE OF PURCHASE, (2) THE RIGHTS HAVING BEEN REDEEMED BY THE BOARD OF DIRECTORS OF THE COMPANY, OR THE PURCHASER BEING SATISFIED, IN ITS SOLE DISCRETION, THAT THE RIGHTS HAVE BEEN INVALIDATED OR ARE OTHERWISE INAPPLICABLE TO THE OFFER AND THE PROPOSED MERGER (AS DEFINED HEREIN), (3) THE ACQUISITION OF SHARES PURSUANT TO THE OFFER AND THE PROPOSED MERGER HAVING BEEN APPROVED PURSUANT TO SECTION 203 OF THE DELAWARE GENERAL CORPORATION LAW ("SECTION 203"), OR THE PURCHASER BEING SATISFIED, IN ITS SOLE DISCRETION, THAT THE PROVISIONS OF SECTION 203 ARE OTHERWISE INAPPLICABLE TO THE ACQUISITION OF SHARES PURSUANT TO THE OFFER AND THE PROPOSED MERGER, (4) THE PURCHASER BEING SATISFIED, IN ITS SOLE DISCRETION, THAT THE PROVISIONS OF ARTICLE IV 2 OF THE COMPANY'S BYLAWS ARE INAPPLICABLE TO THE ACQUISITION OF SHARES PURSUANT TO THE OFFER AND THE PROPOSED MERGER AND (5) THE WAITING PERIODS UNDER THE HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT OF 1976 APPLICABLE TO THE PURCHASE OF SHARES PURSUANT TO THE OFFER HAVING EXPIRED OR BEEN TERMINATED. CERTAIN OTHER CONDITIONS TO THE OFFER ARE DESCRIBED IN SECTIONS 14 AND 15 OF THE OFFER TO PURCHASE. The purpose of the Offer is for Shell to acquire control of, and the entire equity interest in, the Company. The Offer, as the first step in the acquisition of the Company, is intended to facilitate the acquisition of all outstanding shares of the Company. Shell currently intends, promptly following consummation of the Offer, to seek to have the Company consummate a second-step merger or similar business combination with the Purchaser or another indirect wholly owned subsidiary of Shell (the "Proposed Merger"), pursuant to which each then outstanding Share (other than Shares held by Shell, the Purchaser and other Shell subsidiaries) will be converted into the right to receive an amount in cash equal to the price per share paid in the Offer. ON MARCH 8, 2001, AFTER DECLINING SHELL'S PROPOSALS TO MEET WITH THE COMPANY, THE COMPANY'S BOARD OF DIRECTORS REJECTED AN OFFER BY SHELL FOR A TRANSACTION PROVIDING CONSIDERATION OF $55.00 PER SHARE IN CASH FOR ALL THE COMPANY'S OUTSTANDING SHARES. IN CONNECTION WITH ITS REJECTION OF SHELL'S OFFER, THE COMPANY'S BOARD OF DIRECTORS AUTHORIZED MANAGEMENT TO PURSUE STRATEGIC ALTERNATIVES, INCLUDING SEEKING PROPOSALS FROM A NUMBER OF QUALIFIED PARTIES, RATHER THAN COMMENCING NEGOTIATIONS WITH SHELL ALONE. SHELL HAS CHOSEN TO TAKE ITS OFFER DIRECTLY TO THE STOCKHOLDERS OF THE COMPANY RATHER THAN PARTICIPATE IN THE AUCTION PROCESS PROPOSED BY THE COMPANY'S BOARD OF DIRECTORS. SHELL AND THE PURCHASER PRESENTLY REMAIN WILLING TO NEGOTIATE WITH THE COMPANY WITH RESPECT TO SHELL'S ACQUISITION OF THE COMPANY. IF THOSE NEGOTIATIONS OCCUR AND RESULT IN A DEFINITIVE MERGER AGREEMENT BETWEEN THE COMPANY AND SHELL, THE OFFER PRICE OR TERMS OF THE OFFER COULD CHANGE FROM THE PRICE AND TERMS THE OFFER TO PURCHASE DESCRIBES, AND THE CONSIDERATION TO BE RECEIVED BY HOLDERS OF SHARES COULD INCLUDE OR CONSIST OF SECURITIES, CASH OR ANY COMBINATION THEREOF. ACCORDINGLY, THOSE NEGOTIATIONS COULD RESULT IN, AMONG OTHER THINGS, TERMINATION OF THE OFFER AND SUBMISSION OF A DIFFERENT ACQUISITION PROPOSAL TO THE COMPANY'S STOCKHOLDERS FOR THEIR APPROVAL. For purposes of the Offer, the Purchaser will be deemed to have accepted for payment, and thereby purchased, Shares and Rights properly tendered to the Purchaser and not withdrawn as, if and when the Purchaser gives oral or written notice to Wilmington Trust Company (the "Depositary") of the Purchaser's acceptance for payment of such Shares. Upon the terms and subject to the conditions of the Offer, payment for Shares accepted for payment pursuant to the Offer will be made by deposit of the purchase price therefor with the Depositary, which will act as an agent for tendering stockholders for the purpose of receiving payment from the Purchaser and transmitting payment to tendering stockholders. In all cases, payment for Shares accepted for payment pursuant to the Offer will be made only after timely receipt by the Depositary of (1) certificates for such Shares and, if applicable, certificates representing the associated Rights, or timely confirmation of book-entry transfer of such Shares and, if applicable, Rights into the Depositary's account at the Book-Entry Transfer Facility (as defined in the Offer to Purchase) pursuant to the book-entry transfer procedures described in Section 2 of the Offer to Purchase, (2) a Letter of Transmittal (or a facsimile thereof), properly completed and duly executed, with any required signature guarantees, or, in the case of a book-entry transfer, an Agent's Message (as defined in the Offer to Purchase) and (3) any other documents required by the Letter of Transmittal. UNDER NO CIRCUMSTANCES WILL INTEREST BE PAID ON THE PURCHASE PRICE OF THE SHARES TO BE PAID BY THE PURCHASER, REGARDLESS OF ANY EXTENSION OF THE OFFER OR ANY DELAY IN MAKING SUCH PAYMENT. The Purchaser will pay any stock transfer taxes incident to the transfer to it of validly tendered Shares, except as otherwise provided in Instruction 6 of the Letter of Transmittal, as well as any charges of the Depositary and Information Agent. The Purchaser will not pay any additional consideration for the Rights tendered pursuant to the Offer. The term "Expiration Date" means 12:00 midnight, New York City time, on April 6, 2001, unless and until the Purchaser, in its sole discretion, shall have extended the period of time during which the Offer is open, in which event the term "Expiration Date" shall mean the latest time and date on which the Offer, as so extended by the Purchaser, shall expire. Subject to the applicable rules and regulations of the Securities and Exchange Commission, the Purchaser reserves the right, in its sole discretion, at any time and from time to 2 3 time, and regardless of whether or not any of the events or facts set forth in Sections 14 and 15 of the Offer to Purchase shall have occurred, (1) to extend the period of time during which the Offer is open, and thereby delay acceptance for payment of, and the payment for, any Shares by giving oral or written notice of such extension to the Depositary and (2) to amend the Offer in any other respect by giving oral or written notice of such amendment to the Depositary. Any such extension will be followed by a public announcement thereof no later than 9:00 a.m., New York City time, on the next business day after the previously scheduled Expiration Date. During any such extension, all Shares and, if applicable, Rights previously tendered and not properly withdrawn will remain subject to the Offer, subject to the right of a tendering stockholder to withdraw such stockholder's Shares and, if applicable, Rights. Except as otherwise provided below, tenders of Shares and Rights are irrevocable. Shares and Rights tendered pursuant to the Offer may be withdrawn pursuant to the procedures set forth below at any time prior to the Expiration Date and, unless theretofore accepted for payment and paid for by the Purchaser pursuant to the Offer, may also be withdrawn at any time after May 10, 2001, except as provided with respect to any subsequent offering period. For a withdrawal to be effective, a written notice of withdrawal must be received in a timely manner by the Depositary at one of its addresses set forth on the back cover of the Offer to Purchase and must specify the name of the person having tendered the Shares and Rights to be withdrawn, the number of Shares and Rights to be withdrawn and the name of the registered holder of the Shares and Rights to be withdrawn, if different from the name of the person who tendered the Shares and Rights. If certificates for Shares or Rights have been delivered or otherwise identified to the Depositary, then, prior to the physical release of such certificates, the serial numbers shown on such certificates must be submitted to the Depositary and, unless such Shares or Rights have been tendered by an Eligible Institution (as defined in Section 2 of the Offer to Purchase), the signatures on the notice of withdrawal must be guaranteed by an Eligible Institution. If Shares or Rights have been delivered pursuant to the procedures for book-entry transfer described in Section 2 of the Offer to Purchase, any notice of withdrawal must also specify the name and number of the account at the Book-Entry Transfer Facility to be credited with the withdrawn Shares and Rights and otherwise comply with the Book-Entry Transfer Facility's procedures. Withdrawals of Shares and Rights may not be rescinded. Any Shares and Rights properly withdrawn will thereafter be deemed not validly tendered for purposes of the Offer. However, withdrawn shares may be re-tendered at any time prior to the Expiration Date by following one of the procedures described in Section 2 of the Offer to Purchase. All questions as to the form and validity (including time of receipt) of notices of withdrawal will be determined by the Purchaser in its sole discretion, which determination will be final and binding. Rights may not be withdrawn unless the related Shares are also withdrawn. Pursuant to Rule 14d-11 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), the Purchaser may, subject to certain conditions, include a subsequent offering period following the Expiration Date. The Purchaser does not currently intend to include a subsequent offering period in the Offer, although it reserves the right to do so in its sole discretion. Under the Exchange Act, no withdrawal rights apply to Shares tendered during a subsequent offering period and no withdrawal rights apply during the subsequent offering period with respect to Shares tendered in the Offer and accepted for payment. See Section 1 of the Offer to Purchase. A request is being or will be made to the Company pursuant to Rule 14d-5 under the Exchange Act and Section 220 of the Delaware General Corporation Law for the use of the Company's stockholder lists and security position listings for the purpose of disseminating the Offer to stockholders. Upon compliance by the Company with this request, the Offer to Purchase and the related Letter of Transmittal and other relevant materials will be mailed to record holders of Shares and furnished to brokers, dealers, banks, trust companies and similar persons whose names, or the names of whose nominees, appear on the Company's stockholder lists, or, if applicable, who are listed as participants in a clearing agency's security position listing, for subsequent transmittal to beneficial owners of Shares. The receipt of cash in the Offer or the Proposed Merger in exchange for Shares will be a taxable transaction for U.S. federal income tax purposes and may also be a taxable transaction under applicable state, local or foreign income or other tax laws. Stockholders should consult their tax advisors about the particular effect the proposed transactions will have on their Shares. The information required to be disclosed by Rule 14d-6(d)(1) under the Exchange Act is contained in the Offer to Purchase and is incorporated herein by reference. 3 4 THE OFFER TO PURCHASE AND LETTER OF TRANSMITTAL CONTAIN IMPORTANT INFORMATION THAT STOCKHOLDERS SHOULD READ BEFORE MAKING ANY DECISION WITH RESPECT TO THE OFFER. Requests for copies of the Offer to Purchase, the Letter of Transmittal and all other tender offer materials may be directed to the Information Agent or the Dealer Manager as set forth below, and copies will be furnished promptly at the Purchaser's expense. No fees or commissions will be payable to brokers, dealers or other persons other than the Dealer Manager and the Information Agent for soliciting tenders of Shares pursuant to the Offer. The Information Agent for the Offer is: MORROW & CO., INC. 445 Park Avenue, 5th Floor New York, New York 10022 Call Collect: (212) 754-8000 Banks and Brokerage Firms, Please Call: (800) 654-2468 Stockholders Please Call: (800) 607-0088 E-mail: barrett.info@morrowco.com The Dealer Manager for the Offer is: LEHMAN BROTHERS Three World Financial Center 200 Vesey Street New York, New York 10285 Call Collect: (212) 526-4867 or (713) 236-3965 E-mail: barrett.info@lehman.com March 12, 2001 4 EX-99.A1.J 10 h84893tex99-a1_j.txt PRELIMINARY CONSENT STATEMENT DATED 3/12/01 1 EXHIBIT (a)(1)(j) PRELIMINARY COPY -- SUBJECT TO COMPLETION SRM ACQUISITION COMPANY P.O. Box 8985 Wilmington, Delaware 19899 To the Stockholders of Barrett Resources Corporation: On March 12, 2001, SRM Acquisition Company, a Delaware corporation and an indirect wholly owned subsidiary of Shell Oil Company, a Delaware corporation ("Shell"), commenced an offer to purchase for cash all outstanding shares of common stock of Barrett Resources Corporation (the "Company"), including the outstanding associated preferred stock purchase rights, at a price of $55.00 per share (and associated right), on the terms and subject to the conditions set forth in our offer to purchase dated March 12, 2001 and in the related letter of transmittal (which, together with any amendments or supplements thereto, collectively constitute the "offer"). The purpose of our offer is to enable Shell to acquire control of, and the entire equity interest in, the Company. A number of impediments to consummation of our offer presently exist. The Company's board of directors has rejected Shell's offer to acquire the Company in a negotiated transaction at our offer price and refused to take action Shell has requested to permit our all-cash, fully funded offer to be consummated. Accordingly, we are today commencing a solicitation of all the Company's stockholders to remove the Company's entire board of directors without cause and to replace them with three new directors (who we expect will consider, consistent with their fulfillment of their fiduciary duties under Delaware law, whether to take actions that will facilitate the consummation of our offer). The accompanying consent statement describes the specific features of our proposal, as well as the consent procedure itself. We urge you to vote all shares that you were entitled to vote as of the , 2001, record date on your WHITE consent card. Very truly yours, W. van de Vijver President and Chief Executive Officer, SRM Acquisition Company 2 IMPORTANT 1. If you hold your shares of common stock in your own name, please sign, date and mail the enclosed WHITE consent card to Morrow & Co., Inc. in the post-paid envelope provided. 2. If your shares of common stock are held in the name of a brokerage firm, bank nominee or other institution, only it can execute a consent representing your shares and only on receipt of your specific instructions. Accordingly, you should contact the person responsible for your account and give instructions for a WHITE consent card to be signed representing your shares. We urge you to confirm in writing your instructions to the person responsible for your account and provide a copy of those instructions to SRM Acquisition Company in care of Morrow & Co., Inc. so that we will be aware of all instructions given and can attempt to ensure that those instructions are followed. If you have any questions or require any assistance in executing your consent, please call: MORROW & CO., INC. 445 Park Avenue, 5th Floor New York, New York 10022 Call Collect: (212) 754-8000 Banks and Brokerage Firms, Please Call: (800) 654-2468 Stockholders Please Call: (800) 607-0088 E-mail: barrett.info@morrowco.com 3 PRELIMINARY COPY -- SUBJECT TO COMPLETION MARCH , 2001 CONSENT STATEMENT OF SRM ACQUISITION COMPANY SRM Acquisition Company, a Delaware corporation (the "Purchaser," "we" or "our") and an indirect wholly owned subsidiary of Shell Oil Company, a Delaware corporation ("Shell"), is furnishing this consent statement in connection with its solicitation of written consents from the holders of common stock, par value $.01 per share, of Barrett Resources Corporation, a Delaware corporation (the "Company"), to take the following actions without a stockholders' meeting in accordance with Delaware law: - removing without cause all members of the board of directors of the Company who are in office immediately prior to that removal; and - electing Francis L. Durand, R. W. Leftwich and J. Hugh Roff, Jr. (the "Nominees") to serve as directors of the Company. We are proposing these actions (each a "Proposal") to expedite the prompt consummation of our offer to acquire the Company, which we describe below. WE ARE ASKING THE STOCKHOLDERS OF THE COMPANY TO EXPRESS THEIR CONSENT TO THE PROPOSALS ON THE ACCOMPANYING WHITE CONSENT CARD. The effectiveness of each Proposal will require the properly completed and duly delivered, unrevoked written consent to that Proposal by the holders of record, as of the close of business on , 2001, the record date for this consent solicitation, of a majority of the shares of the Company's common stock then outstanding. See "Consent Procedure." The effectiveness of the removal Proposal is not subject to, or conditioned on, the election Proposal also having become effective. Absent judicial relief, which Shell and we are seeking (see "Litigation"), or action by the Company's board, a Company bylaw requiring advance notice of stockholder nominations for directors to be elected by written consent of the stockholders could delay the election of the Nominees. If such a delay were to occur following the removal of the entire board in accordance with the removal Proposal, the Delaware General Corporation Law (the "DGCL") provides a mechanism for the election of new directors of the Company. See "The Proposals -- Election of Nominees." The effectiveness of the election Proposal also is subject to, and conditioned on, all members of the Company's board immediately prior to the election of the Nominees having been removed in accordance with the removal Proposal or otherwise having ceased to be directors of the Company. This consent statement and the related WHITE consent card are first being sent or given on or about , 2001 to all holders of record of shares of the Company's common stock on the record date for this consent solicitation. On that date, we, Shell and Shell's other direct or indirect subsidiaries, beneficially owned 107,100 shares, or less than one percent of the outstanding shares. The Company's bylaws provide that any stockholder of record seeking to have the stockholders authorize or take corporate action by written consent without a meeting must request the Company's board to fix a record date in order to determine the stockholders entitled to give that consent. The Company's board must reasonably promptly, but in all events within 10 business days after the date on which the request is received, adopt a resolution fixing that record date. If the board does not fix a record date within that period, the record date for the solicitation will be the date on which the first signed consent is delivered to the Company. Shell, through us and another of its indirect wholly-owned subsidiaries, beneficially owns 107,100 shares of common stock, of which we are the record owner of 100 shares. [We, as record holder, intend to request the board to fix a record date for this consent solicitation. If the board does not timely fix a record date for this consent solicitation, the record date will be the date on which the first signed consent is delivered to the Company. Otherwise, the record date will be the date the Company's board sets.] On March 12, 2001, we commenced a fully funded all-cash offer to purchase (1) all outstanding shares of the Company's common stock and (2) the outstanding associated preferred stock purchase rights (the "Rights") issued under the Rights Agreement dated as of August 5, 1997, as amended (the "Rights Agreement"), between the Company and BankBoston, N.A., as Rights agent (the common stock, together (unless the context otherwise requires) with the associated Rights, being herein referred to as the "shares"), 4 at a price of $55.00 per share, net to the seller in cash, without interest thereon (the "offer price"), on the terms and subject to the conditions set forth in our offer to purchase dated March 12, 2001 and in the related letter of transmittal (which, together with any amendments or supplements thereto, collectively constitute the "offer"). Complete information about our offer is contained in our offer to purchase, which is available on request from Morrow & Co., Inc., the information agent for the offer, at 445 Park Avenue, 5th Floor, New York, New York 10022, at no charge, and in our tender offer statement on Schedule TO, which is on file with the Securities and Exchange Commission. That tender offer statement and any amendments thereto, including exhibits, are available for inspection and copies thereof may be obtained in the manner set forth under "Certain Information Concerning the Purchaser and its Affiliates" in our offer to purchase. THIS CONSENT STATEMENT IS NEITHER A REQUEST FOR THE TENDER OF SHARES NOR AN OFFER WITH RESPECT THERETO. WE ARE MAKING THE OFFER ONLY BY MEANS OF THE OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL. The purpose of our offer is to enable Shell to acquire control of, and the entire equity interest in, the Company. Shell currently intends, as soon as practicable after the Nominees have become members of the Company's board, to request that the board duly consider and take the actions we describe below. If the board takes these actions and the other conditions to the offer are satisfied or waived by us, Shell currently intends to effect, as soon as practicable after we consummate the offer, a merger or similar business combination between the Company and us or another indirect wholly owned subsidiary of Shell as a result of which: - the Company would become a direct or indirect wholly owned subsidiary of Shell; and - each then outstanding share (other than shares Shell or its direct or indirect subsidiaries, including us, own, shares the Company holds in its treasury and shares of stockholders who perfect available appraisal rights under the DGCL) would convert into the right to receive an amount in cash equal to the price per share we have paid pursuant to the offer. In this consent statement, "our transaction" refers to both our offer and the proposed follow-on merger of the Company. We have conditioned the offer on, among other things: - the Company's board having redeemed the Rights, or our being satisfied, in our sole discretion, that the Rights have been invalidated or are otherwise inapplicable to our transaction (the "Rights Condition"); and - the Company's board having approved the acquisition of shares pursuant to the offer and the proposed merger before Shell or we become "interested stockholders" under section 203 of the DGCL, or our being satisfied, in our sole discretion, that the provisions of section 203 are otherwise inapplicable to the offer and the proposed merger (the "Business Combination Condition"). We also have conditioned the offer on our being satisfied, in our sole discretion, that article IV of the Company's bylaws is inapplicable to the acquisition of shares in our transaction (the "Bylaws Condition"). Section 14 of the offer to purchase describes other conditions applicable to the offer. These other conditions do not include any financing condition. The Rights represent one of the antitakeover measures the Company has in place. Another of these measures is a provision in the Company's bylaws which requires nominations by stockholders for directors to be elected by written consent of the stockholders to be made to the Company at least 60 days prior to the first solicitation of any written consent for that election. See "The Proposals -- Election of Nominees." Article IV of the Company's bylaws is another antitakeover measure. It provides that, subject to specified exceptions, a beneficial owner of 15 percent or more of the outstanding shares shall not become the beneficial owner of additional shares. These measures, taken together with section 203, would, if applicable to our transaction, render it both economically unfeasible and difficult to complete. This consent solicitation is one of the measures Shell and we are taking, in addition to the offer and the lawsuits we describe under the caption "Litigation," to bring our transaction to the Company's stockholders. 2 5 The principal reason we are seeking to replace the members of the Company's board with the Nominees is the willingness of the Nominees to consider, consistent with their fulfillment of their fiduciary duties under Delaware law, whether to take such actions as they may deem necessary or appropriate to expedite the prompt consummation of our transaction, including: - redeeming the Rights or amending the Rights Agreement to make the Rights inapplicable to our transaction, thereby satisfying the Rights Condition; - approving the offer and the proposed merger before Shell and we become "interested stockholders" under section 203, thereby satisfying the Business Combination Condition; and - rendering inapplicable, if otherwise applicable, article IV of the Company's bylaws to our transaction, thereby satisfying the Bylaws Condition; or, if a proposal has been made respecting a transaction that is determined to be superior to our transaction for the Company's stockholders, whether to take such actions as they may deem necessary or appropriate to facilitate that proposed transaction. The Company's bylaws provide that, if stockholders deliver to the Company the requisite unrevoked written consents to take corporate action and the action involves the removal or election of directors: - the Company's corporate secretary will engage nationally recognized independent inspectors of elections to conduct such reasonable investigation as they deem necessary or appropriate for the purpose of determining the validity of the consents and all matters incidental thereto; and - pending the certification by these inspectors to the Company that those consents represent at least the minimum number of votes that would be necessary to take the action, the action will not be effective. Because this bylaw provision does not establish any time period within which the inspectors must act, there can be no assurance that, absent judicial relief, the effectiveness of the election Proposal would not be delayed for an indefinite time. ADOPTION OF THE PROPOSALS, WHICH WILL EFFECT THE REMOVAL WITHOUT CAUSE OF THE ENTIRE BOARD DIRECTORS OF THE COMPANY AND THE ELECTION OF THE NOMINEES TO THAT BOARD, IS AN IMPORTANT STEP TOWARD PROMPT CONSUMMATION OF OUR TRANSACTION. ACCORDINGLY, WE URGE YOU TO PROMPTLY SIGN, DATE AND MAIL THE ENCLOSED WHITE CONSENT CARD. YOU MUST SEPARATELY TENDER YOUR SHARES PURSUANT TO THE OFFER IF YOU WISH TO PARTICIPATE IN THE OFFER. EXECUTING A CONSENT DOES NOT OBLIGATE YOU TO TENDER YOUR SHARES PURSUANT TO THE OFFER, AND YOUR FAILURE TO EXECUTE A CONSENT DOES NOT PREVENT YOU FROM TENDERING YOUR SHARES PURSUANT TO THE OFFER. Because each Proposal will become effective only if executed consents to that Proposal are returned by holders of record on the record date for this consent solicitation of a majority of the total number of shares of common stock then outstanding, the failure to execute and return a consent will have the same effect as voting against the Proposals. Shell and we have retained Morrow & Co., Inc. to assist in the solicitation of consents to the Proposals. If your shares are registered in your own name, please sign, date and mail the enclosed WHITE consent card to Morrow & Co., Inc. in the post-paid envelope provided. If your shares are held in the name of a brokerage firm, bank nominee or other institution, only it can sign a WHITE consent card with respect to your shares and only on receipt of specific instructions from you. Accordingly, you should contact the person responsible for your account and give instructions for a WHITE consent card to be signed representing your shares. We urge you to confirm in writing your instructions to the person responsible for your account and to provide a copy of those instructions to SRM Acquisition Company in care of Morrow & Co., Inc., 445 Park Avenue, 5th Floor, New York, New York 10022, so we will be aware of all instructions given and can attempt to ensure that those instructions are followed. 3 6 If you have any questions about executing your consent or require assistance, please contact: MORROW & CO., INC. 445 Park Avenue, 5th Floor New York, New York 10022 Call Collect: (212) 754-8000 Banks and Brokerage Firms, Please Call: (800) 654-2468 Stockholders Please Call: (800) 607-0088 E-mail: barrett.info@morrowco.com 4 7 TABLE OF CONTENTS
PAGE ----- SUMMARY..................................................... 6 The Proposals............................................. 6 Our Transaction........................................... 6 Voting Securities And Principal Holders................... 7 Consent Procedure......................................... 7 REASONS FOR THE SOLICITATION................................ 7 THE PROPOSALS............................................... 8 THE OFFER AND THE PROPOSED MERGER........................... 11 VOTING SECURITIES AND PRINCIPAL HOLDERS THEREOF............. 11 INFORMATION CONCERNING THE PURCHASER AND SHELL.............. 12 SOLICITATION OF CONSENTS.................................... 12 CONSENT PROCEDURE........................................... 13 Effectiveness and Revocation of Consents.................. 13 Special Instructions...................................... 14 Appraisal Rights.......................................... 15 LITIGATION.................................................. 15 ANNEX I..................................................... I-1 ANNEX II.................................................... II-1 ANNEX III................................................... III-1
5 8 SUMMARY The information in this summary is qualified in its entirety by reference to the more detailed information appearing elsewhere in this consent statement or in the offer to purchase, as applicable. THE PROPOSALS We are soliciting written consents from the Company's stockholders to remove without cause all members of the board of directors of the Company who are in office immediately prior to that removal and to elect the Nominees to serve as the directors of the Company. The principal reason we are seeking to replace the Company's board with the Nominees is the willingness of the Nominees to consider, consistent with their fulfillment of their fiduciary duties under Delaware law, whether to take such actions as they may deem necessary or appropriate to expedite the prompt consummation of our transaction, including: - redeeming the Rights or amending the Rights Agreement to make the Rights inapplicable to the offer and the proposed merger, thereby satisfying the Rights Condition; - approving the offer and the proposed merger before Shell or we become "interested stockholders" under section 203 of the DGCL, thereby satisfying the Business Combination Condition; and - rendering inapplicable, if otherwise applicable, article IV of the Company's bylaws to our transaction, thereby satisfying the Bylaws Condition; or, if a proposal has been made respecting a transaction that is determined to be superior to our transaction for the Company's stockholders, whether to take such actions as they may deem necessary or appropriate to facilitate that proposed transaction. Adoption of the Proposals by the Company's stockholders would expedite the prompt consummation of our transaction. OUR TRANSACTION On March 12, 2001, we commenced our offer, which provides for our purchase of all outstanding shares at the offer price ($55.00 per share). The purpose of the offer is to enable Shell to acquire control of, and the entire equity interest in, the Company. Shell currently intends, as soon as practicable after the Nominees have become members of the Company's board, to request that the board duly consider and then take the actions respecting our transaction which we describe above in "The Proposals." If the board takes these actions and the other conditions to the offer have been satisfied or waived by us, Shell currently intends to effect the proposed merger as soon as practicable after we consummate the offer. The Company would become an indirect wholly owned subsidiary of Shell as a result of this merger. When the merger takes place, each then outstanding share (other than shares Shell or Shell's direct or indirect subsidiaries, including us, own, shares the Company holds in its treasury and shares of stockholders who perfect available appraisal rights under the DGCL) would convert into the right to receive an amount in cash equal to the price per share we have paid pursuant to the offer. For additional information respecting the proposed merger, see "The Offer and the Proposed Merger." On February 28, 2001, the last trading day before Shell delivered to the Company its letter offering a price of $55.00 per share, the last sale price of the shares reported by the NYSE was $44.25. A $55.00 per share price represents an approximately 24 percent premium over the February 28, 2001 last sale price. On March 6, 2001, the last full trading day before the first public announcement of Shell's intention to commence the offer, the last reported sale price of the shares on the NYSE was $45.62 per share. On March 7, 2001, prior to the commencement of trading, Shell issued a press release announcing its proposal to acquire all outstanding shares of the Company for a price of $55.00 per share. On March 9, 2001, which was the last full trading day before commencement of the offer, the last reported sale price of the shares on the NYSE was $62.52 per share. As of March 12, 2001, the Rights were attached to the shares and were not traded separately. As a result, the sales quotations per share set forth above are also the sales prices per share and associated Right on the dates indicated. Unless the Company's board redeems the Rights, amends the Rights Agreement to make the Rights inapplicable to the offer or delays the distribution date of the Rights, we believe that, as a result of 6 9 Shell's announcement on March 7, 2001 of its intention to commence the offer, the distribution date of the Rights may occur as early as March 21, 2001. On the basis of publicly available information, the Purchaser believes that, as of March 12, 2001, the Rights were not exercisable, certificates for Rights had not yet been issued and the Rights were evidenced by the certificates for shares. If the Rights begin to trade separately from the shares, stockholders should be able to obtain, and should obtain, a current market price for the Rights. Although the adoption of our Proposals is an important step toward prompt consummation of our transaction, we are not asking the Company's stockholders to tender their shares by means of this consent solicitation or to consent to or vote on the proposed merger at this time. VOTING SECURITIES AND PRINCIPAL HOLDERS The common stock of the Company constitutes its only class of voting securities. Accordingly, only holders of common stock are entitled to execute consents. For information regarding the persons we believe beneficially own more than five percent of the common stock, see "Voting Securities and Principal Holders Thereof." CONSENT PROCEDURE We will pay all costs of our solicitation of consents. The consents are being solicited in accordance with the applicable provisions of the DGCL. Holders of record of the common stock as of the close of business on the record date for this consent solicitation are entitled to consent to our Proposals. To be effective, the requisite consents must be delivered to the Company within 60 days of the earliest dated consent delivered to the Company. For additional information respecting the consent procedure applicable to this consent solicitation, see "Consent Procedure." REASONS FOR THE SOLICITATION We are soliciting written consents to the Proposals in order to expedite the prompt consummation of our transaction. The purpose of our transaction is to enable Shell to acquire control of, and the entire equity interest in, the Company. We believe our transaction is in the best interests of the stockholders of the Company because, among other reasons, the consideration they would receive in the transaction reflects a substantial premium over the unaffected trading price of the shares immediately preceding the first public announcement of our offer. We anticipate that the Nominees, acting as the Company's board, would consider, consistent with their fulfillment of their fiduciary duties under Delaware law, whether to take such actions as they may deem necessary or appropriate to expedite the prompt consummation of our transaction, including: - redeeming the Rights or amending the Rights Agreement to make the Rights inapplicable to the offer and the proposed merger, thereby satisfying the Rights Condition; - approving the offer and the proposed merger before Shell or we become "interested stockholders" under section 203 of the DGCL, thereby satisfying the Business Combination Condition; and - rendering inapplicable, if otherwise applicable, article IV of the Company's bylaws to our transaction, thereby satisfying the Bylaws Condition; or, if a proposal has been made respecting a transaction that is determined to be superior to our transaction for the Company's stockholders, whether to take such actions as they may deem necessary or appropriate to facilitate that proposed transaction. The adoption of the Proposals under this consent solicitation by the Company's stockholders would expedite the prompt consummation of our transaction. This adoption will require the affirmative written consent of the holders of a majority of the outstanding shares of the Company's common stock and either the amendment or waiver by the Company's board of one or more provisions in the Company's bylaws or the invalidation of those provisions by, or other relief from, a court. See "The Proposals -- Election of Nominees" and "Litigation." 7 10 THE PROPOSALS We are seeking written stockholder consents without a meeting to the Proposals, which consist of taking the following actions: - removing without cause all members of the board of directors of the Company who are in office immediately prior to that removal; and - electing the Nominees as the directors of the Company. The effectiveness of each Proposal will require the duly completed and delivered, unrevoked written consent to that Proposal by the holders of record, as of the close of business on the record date for this consent solicitation, of a majority of the shares of the Company's common stock then outstanding. The effectiveness of the removal Proposal is not subject to, or conditioned on, the election Proposal also having become effective. Absent judicial relief, which Shell and we are seeking (see "Litigation"), or action by the Company's board, a Company bylaw requiring advance notice of stockholder nominations for directors to be elected by written consent of the stockholders could delay the election of the Nominees. See "-- Election of Nominees" below for a description of this bylaw. If such a delay were to occur following the removal of the entire board in accordance with the removal Proposal, section 223 of the DGCL provides a mechanism for the election of new directors of the Company. Section 223 provides that if a Delaware corporation should at any time have no directors in office, various persons, including any of the corporation's officers and stockholders, may apply to the Delaware Court of Chancery for a decree summarily ordering an election of directors pursuant to section 211 of the DGCL. The effectiveness of the Proposal to elect the Nominees is subject to, and conditioned on, all members of the Company's board immediately prior to that election having been removed in accordance with the removal Proposal or otherwise having ceased to be directors of the Company. WE URGE YOU TO CONSENT TO EACH PROPOSAL. REMOVAL OF DIRECTORS. This Proposal includes the removal without cause of all the Company's current directors and any other person who may be a director at the time that removal becomes effective. The Company's current directors are C. Robert Buford, Derrill Cody, Peter A. Dea, James M. Fitzgibbons, Hennie L. J. M. Gieskes, William W. Grant, III and Philippe S. E. Schreiber. Section 141(k) of the DGCL provides that any director or the entire board of directors of a Delaware corporation may be removed, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of the corporation's directors, subject to exceptions if the corporation has a classified board or cumulative voting in the election of its directors. According to publicly available information, the Company does not have a classified board or cumulative voting in the election of its directors. Consequently, section 141(k) permits the stockholders of the Company to remove its entire board without cause. ELECTION OF NOMINEES. This Proposal includes the election as directors of the Company of the three Nominees the table below names, each of whom has consented to serve as a director, if elected, until the next annual meeting of stockholders and until his successor has been elected and qualified. Our principal purpose in seeking to elect the Nominees to the Company's board is to obtain the redemption of the Rights (or an amendment of the Rights Agreement to make the Rights inapplicable to our transaction), the approval of the offer and the proposed merger before Shell and we become "interested stockholders" under section 203 of the DGCL and action rendering article IV of the Company's bylaws, if otherwise applicable, inapplicable to our transaction. These actions would expedite the prompt consummation of our offer and the proposed merger. If elected, however, the Nominees would be responsible for managing the business and affairs of the Company. Each director of the Company has an obligation under Delaware law to discharge his or her duties as a director on an informed basis, in good faith and in a manner the director honestly believes to be in the best interests of the Company. In this connection, circumstances may arise in which the interests of Shell and us may differ from the interests of other stockholders of the Company. In any such case, we understand that the Nominees intend to discharge fully the fiduciary obligations they would then owe to the Company and its stockholders under Delaware law. 8 11 We have no reason to believe that any Nominee will be unable or unwilling to serve as a director of the Company, but if any Nominee is not available for election, the Nominee or Nominees who are elected will fill the resulting vacancy.
NAME AND EMPLOYMENT HISTORY OR PRESENT PRINCIPAL BUSINESS ADDRESS AGE OCCUPATION AND FIVE-YEAR EMPLOYMENT HISTORY - ---------------- --- ------------------------------------------- FRANCIS L. DURAND.......................... 78 Mr. Durand is a retired partner of Ernst & 11746 Mission Trace Young, LLP, independent certified public San Antonio, Texas 78230 accountants and a successor to Ernst & Whinney. Prior to his retirement in 1982, he was the Chairman of the Ernst & Young Energy Committee, focusing on services to the oil and gas industry on a national basis. Prior to that, he served as the managing partner of Ernst & Young's Louisiana, Kansas City, and San Antonio offices. He served on the American Institute of Certified Public Accountants' Oil and Gas Committee from 1981 to 1982. Mr. Durand was a board member for Phoenix Resource Companies, Inc. for six years prior to its acquisition by Apache Corporation in 1996. Mr. Durand is presently engaged in consulting to the oil and gas industry. R. W. LEFTWICH............................. 58 Mr. Leftwich has been employed by Shell and c/o Shell Oil Company its affiliates for over 37 years beginning One Shell Plaza in 1964. Mr. Leftwich has served as the 910 Louisiana treasurer of Shell since February 1999. Houston, TX 77002 From February 1995 to January, 1999 Mr. Leftwich served as the assistant treasurer of Shell and was a practice area coordinator who was responsible for corporate financing and corporate insurance programs. Mr. Leftwich joined Shell after graduating from Culver-Stockton College in Missouri, where he is currently a member of the board of trustees, with a Bachelor of Science in Business and Economics. He is a director and an officer of numerous Shell subsidiaries. J. HUGH ROFF, JR........................... 69 Mr. Roff was the Chairman, President and c/o Roff Resources LLC Chief Executive Officer of United Energy 333 Clay Street, Suite 4300 Resources, Inc., a diversified energy Houston, TX 77002 company engaged principally in interstate and intrastate natural gas transmission and oil and gas exploration, development and production operations, from 1974 to 1985, when United Energy was acquired by Midcon Corp., a company principally engaged in the natural gas pipeline business. Since 1985, Mr. Roff has been engaged in privately held businesses of which he has been the principal owner, including Alabama Methane Production Company, Inc. (1986-1989), Petro United Terminals, Inc. (1986-1998), and Roff Resources LLC (1998 to present). Mr. Roff has been a director of Tidewater, Inc. since 1986.
Annex III sets forth certain information relating to shares the Nominees own [and certain transactions between any of them and the Company]. We contemplate that we will pay each Nominee a fee of $25,000 for agreeing to stand for election as a director of the Company. Mr. Leftwich has stated his intention to donate all compensation he receives for standing for election as a director, and for his services as a director of the Company should he be so elected, 9 12 other than reimbursement for out-of-pocket expenses, to Shell Oil Company Foundation, a charitable foundation. Mr. Roff has requested that any compensation (other than reimbursement for out-of-pocket expenses) that Shell would otherwise pay him for standing for election as a director of the Company instead be donated in his name to the Jesse H. Jones Graduate School of Management at Rice University. We anticipate that each Nominee, on his election, will receive director's fees, consistent with the Company's past practice, for services as a director of the Company. According to the Company's 2000 Proxy Statement, directors who are not also employees of the Company received an annual retainer of $20,000, payable quarterly, for the fiscal year ended December 31, 1999. Each such director also received a fee for each board or committee meeting attended in person ($1,000) or by telephone ($500). The chairmen of the audit and compensation committees each received an additional $500 for each committee meeting that they chaired. All directors were reimbursed for out-of-pocket expenses incurred in connection with attending board and committee meetings. In addition, directors who were not also employees were granted options to purchase 10,000 shares of the Company's common stock under the Company's Non-Discretionary Stock Option Plan which become exercisable in 1,000 share increments on each board or committee meeting attended. Shell has agreed to indemnify each Nominee, to the fullest extent applicable law permits, from and against any and all expenses, liabilities or losses of any kind arising out of any threatened or filed claim, action, suit or proceeding, whether civil, criminal, administrative or investigative, asserted against or incurred by the Nominee in his capacity as a nominee for election as a director of the Company, or arising out of his status in that capacity. Shell also has agreed that if the Nominees are elected as directors of the Company, it will assure to them, to the fullest extent section 145 of the DGCL and other applicable law would permit the Company to indemnify them as directors, the same indemnity in their capacities as those directors or arising out of their status in those capacities. Shell has also agreed to reimburse each Nominee for other reasonable out-of-pocket expenses, including reasonable fees and expenses of counsel he incurs in his capacity as a nominee. The Company's bylaws, in article III, section 3 (the "advance notice bylaw"), provides in part that: Nominations by stockholders for directors to be elected by written consent of stockholders shall be made by notice in writing, delivered or mailed by first class United States mail, postage prepaid, to the secretary of the corporation not less than 60 days nor more than 90 days prior to the first solicitation of any written consents of stockholders for the election of those nominees. The advance notice bylaw further provides that, "[n]o person shall be eligible for election as a director of the Corporation unless nominated in accordance with the procedure set forth in this Section." Section 228(a) of the DGCL provides in part that: Unless otherwise provided in the certificate of incorporation, any action required by this chapter to be taken at any annual or special meeting of such stockholders of a corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in this State, its principal place of business, or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. (emphasis added). According to publicly available information, the certificate of incorporation of the Company contains no limitation on the stockholder right to act by written consent and does not require any prior notice in connection with any action by written consent to elect any of its directors. In an action for declaratory and injunctive relief, Shell and we have requested the Delaware Court of Chancery to declare that the advance notice bylaw is invalid as a violation of section 228 of the DGCL and enjoin the Company or anyone acting on its behalf or in concert with it from enforcing that bylaw. See "Litigation." We gave the Company's corporate secretary written notice of our election Proposal on March , 2001 and first solicited written consents to the election Proposal on , 2001. 10 13 THE OFFER AND THE PROPOSED MERGER On March 12, 2001, we commenced the offer, which provides for our purchase of all outstanding shares at the offer price ($55.00 per share). The purpose of the offer is to enable Shell to acquire control of, and the entire equity interest in, the Company. Shell currently intends to effect the proposed merger as soon as practicable following consummation of the offer. When the proposed merger takes place, each then outstanding share (other than shares Shell and its affiliates, including us, own, shares the Company holds in its treasury and shares of stockholders who perfect available appraisal rights under the DGCL) would convert into the right to receive an amount in cash equal to the price per share we have paid pursuant to the offer. The DGCL provides that if one corporation owns at least 90 percent of the outstanding shares of each class of another corporation, the two corporations may merge in a "short-form" merger without a vote of the subsidiary's minority stockholders. Accordingly, if, as a result of the offer or otherwise, we acquire at least 90 percent of the outstanding shares, we could, and intend to, effect the proposed merger as a "short-form" merger without prior notice to, or any action by, any other stockholder of the Company. If we cannot effect the proposed merger as a "short-form" merger, the DGCL will require the approval of the Company's board of directors and the affirmative vote of holders of a majority of the outstanding shares (including the shares we own) in order to effect the proposed merger. If we acquire, through the offer or otherwise, at least a majority of the outstanding shares, we would have sufficient voting power to effect the proposed merger without the vote of any other stockholder of the Company. VOTING SECURITIES AND PRINCIPAL HOLDERS THEREOF The common stock of the Company constitutes its only class of voting securities and only holders of that stock are entitled to execute consents. According to the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 2000, 33,055,586 shares of common stock were outstanding as of November 8, 2000. According to a press release the Company issued on March 1, 2001, 33,394,063 shares were outstanding as of December 31, 2000. Each share entitles its record holder to one vote. Stockholders of the Company do not have cumulative voting rights in the election of directors. The following table sets forth the name of and other information respecting each person who we believe, on the basis of the publicly available information indicated below, owned beneficially more than five percent of the shares of the Company's common stock outstanding at the dates indicated.
AMOUNT AND NATURE OF BENEFICIAL PERCENT OF NAME AND ADDRESS OF BENEFICIAL OWNER OWNERSHIP CLASS - ------------------------------------ ---------------- ---------- State Farm Mutual Automobile Insurance Company and affiliates................................................ 2,938,638 Shares(1)(5) 8.79% One State Farm Plaza Bloomington, IL 61710 Franklin Resources, Inc. ................................... 2,467,215 Shares(2)(5) 7.5% 777 Mariners Island Boulevard San Mateo, CA 94404 Scudder Kemper Investments, Inc. ........................... 1,906,100 Shares(3) 5.8% 345 Park Avenue New York, New York 10154 T. Rowe Price Associates, Inc. ............................. 1,753,936 Shares(4) 5.3% 100 E. Pratt Street Baltimore, Maryland 21202
- --------------- (1) According to a Schedule 13G the named person filed on February 9, 2001 with the SEC. (2) According to a Schedule 13G the named person filed on February 12, 2001 with the SEC. (3) According to a Schedule 13G the named person filed on February 14, 2001 with the SEC. (4) According to a Schedule 13G the named person filed on February 6, 2001 with the SEC. (5) Includes shares affiliates of the named person (which collectively may constitute a "group") owned. 11 14 For information relating to the ownership of common stock by directors and executive officers of the Company, see Annex I hereto. INFORMATION CONCERNING THE PURCHASER AND SHELL We are a Delaware corporation and an indirect wholly-owned subsidiary of Shell. We were organized to acquire the Company and have not conducted any unrelated activities since our organization. Our principal office is located at Shell's principal offices. Shell is a Delaware corporation with its principal offices located at One Shell Plaza, 910 Louisiana, Houston, Texas 77002. Shell is wholly owned by Shell Petroleum Inc., a Delaware corporation, whose shares are directly or indirectly owned 60 percent by Royal Dutch Petroleum Company, The Hague, The Netherlands, and 40 percent by The "Shell" Transport and Trading Company, p.l.c., London, England. Royal Dutch Petroleum Company and The "Shell" Transport and Trading Company, p.l.c., are holding companies which together directly or indirectly own securities of companies of the Royal Dutch/Shell Group of Companies, the members of which are severally engaged throughout the greater part of the world in all of the principal aspects of the oil and natural gas industry. They also have substantial interests in chemicals and additional interests in power generation, renewable resources (chiefly in forestry and solar energy), coal and other businesses. Annex II sets forth information about the Nominees, the directors and executive officers of Shell and the Purchaser who may solicit consents and their employees and other representatives, if any, who may also assist Morrow & Co., Inc. in soliciting consents. Annex III sets forth certain information relating to shares these participants own [and certain transactions between any of them and the Company]. Available Information. Shell is no longer subject to the informational requirements of the Exchange Act, and has ceased to file reports and other information with the SEC. However, Royal Dutch Petroleum Company and The "Shell" Transport and Trading Company, p.l.c. are each subject to the informational requirements of the Exchange Act and, in accordance therewith, are required to file annual reports on Form 20-F with the SEC relating to their business, financial condition and other matters. Such reports and other information should be available for inspection at the public reference facilities of the SEC at 450 Fifth Street, NW, Washington, DC 20549, and at the regional offices of the SEC located at Seven World Trade Center, 13th Floor, New York, NY 10048 and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, IL 60661. Copies of such information should be obtainable, by mail, on payment of the SEC's customary charges, by writing to the SEC's principal office at 450 Fifth Street, NW, Washington, DC 20549. The SEC maintains a web site that contains reports and other information regarding registrants that file electronically with the SEC. Those reports and other information may be found at the SEC's web site address, http://www.sec.gov. That material should also be available for inspection at the offices of the NYSE at 20 Broad Street, New York, New York 10005. SOLICITATION OF CONSENTS Solicitation of consents may be made by the directors, officers, investor relations personnel and other employees of Shell and its affiliates. Consents will be solicited by mail, advertisement, telephone or telecopier and in person. None of those persons will receive additional compensation for their solicitation efforts. In addition, Shell and we have retained Morrow & Co., Inc. to assist in the solicitation, for which we will pay Morrow & Co. a fee of $150,000 and will reimburse Morrow & Co. for its reasonable out-of-pocket expenses. Shell has agreed to indemnify Morrow & Co. against various liabilities and expenses, including various liabilities and expenses under the federal securities laws. Morrow & Co. anticipates that it will use approximately persons to solicit stockholders. Morrow & Co. is also acting as information agent in connection with the offer, for which Morrow & Co. will be paid customary compensation in addition to reimbursement of reasonable out-of-pocket expenses. Banks, brokers, custodians, nominees and fiduciaries will be requested to forward solicitation material to beneficial owners of shares. We and our affiliates will reimburse banks, brokers, custodians, nominees and fiduciaries for their reasonable expenses for sending solicitation material to the beneficial owners. 12 15 Lehman Brothers Inc. ("Lehman Brothers") is acting as dealer manager in connection with the offer and is providing financial advisory services to Shell and us in connection with our transaction. Under an engagement letter dated November 20, 2000, between Shell and Lehman Brothers, fees totaling $500,000.00 are currently payable to Lehman Brothers. An additional fee of $6 million will be payable to Lehman Brothers in the event the offer is consummated. Shell has also agreed to reimburse Lehman Brothers for its reasonable out-of-pocket expenses, including the fees and expenses of its counsel and any other advisor Lehman Brothers retains in connection with its engagement, and to indemnify Lehman Brothers and various related persons against various liabilities and expenses, including various liabilities under federal securities laws. We will bear the costs of this consent solicitation and will not seek reimbursement of those costs from the Company. Costs related to the offer and to the solicitation of consents include expenditures for attorneys, accountants, financial advisors, consent solicitors, public relations advisors, printing, advertising, postage, litigation and related expenses and filing fees and, other than the payment for shares under the offer, are expected to aggregate approximately $ million, of which has been paid to date. The portion of those costs allocable solely to the solicitation of consents is not readily determinable. CONSENT PROCEDURE Section 228 of the DGCL states that, unless the certificate of incorporation of a Delaware corporation otherwise provides, any action required to be taken at any annual or special meeting of stockholders of that corporation, or any action that may be taken at any annual or special meeting of those stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, is signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take that action at a meeting at which all shares entitled to vote thereon were present and voted, and those consents are delivered to the corporation by delivery to its registered office in Delaware, its principal place of business or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Company's registered office shall be by hand or by certified or registered mail, return receipt requested. The Company's certificate of incorporation does not prohibit stockholder action by written consent. Section 213(b) of the DGCL provides that the record date for determining the stockholders of a Delaware corporation entitled to consent to corporate action in writing without a meeting, when no prior action by the corporation's board of directors is required and that board has not fixed that record date, will be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation by delivery to its registered office in Delaware, its principal place of business or an officer or agent of the corporation having custody of the book in which proceedings of meetings of the stockholders are recorded. Delivery made to the Company's registered office shall be by hand or by certified or registered mail, return receipt requested. No prior action is required by the Company's board with respect to the Proposals. The Company's bylaws provide that any stockholder of record seeking to have the stockholders of the Company authorize or take corporate action by written consent is required to request that the Company's board fix a record date. The board must reasonably promptly, but in all events within 10 business days after the date on which the request is received, adopt a resolution fixing the record date for the solicitation. If the board does not fix a record date within 10 business days after the receipt of the request, the record date for the solicitation will be the date on which the first signed consent is delivered to the Company. [We, as record holder, intend to request the board to fix a record date for this consent solicitation. If the board does not timely fix a record date for the solicitation, that record date will be the date on which the first signed consent is delivered to the Company. Otherwise, the record date will be the date the board fixes.] If either or both Proposals become effective as a result of this consent solicitation, prompt notice will be given under section 228(e) of the DGCL to stockholders who have not executed consents. EFFECTIVENESS AND REVOCATION OF CONSENTS The Company's bylaws provide that, if stockholders deliver to the Company the requisite unrevoked written consents to take corporate action and the action involves the removal or election of directors: - the Company's corporate secretary will engage nationally recognized independent inspectors of elections to conduct such reasonable investigation as they deem necessary or appropriate for the purpose of determining the validity of the consents and all matters incidental thereto; and 13 16 - pending the certification by these inspectors to the Company that those consents represent at least the minimum number of votes that would be necessary to take the action, the action will not be effective. Because this bylaw provision does not establish any time period within which the inspectors must act, there can be no assurance, absent judicial relief, that the effectiveness of the election Proposal would not be delayed for an indefinite time. An executed consent card may be revoked at any time by marking, dating, signing and delivering a written revocation before the time that the action authorized by the executed consent becomes effective. A revocation may be in any written form validly signed by the record holder as long as it clearly states that the consent previously given is no longer effective. The delivery of a subsequently dated consent card that is properly completed will constitute a revocation of any earlier consent. The revocation may be delivered either to SRM Acquisition Company in care of Morrow & Co., Inc., 445 Park Avenue, 5th Floor, New York, New York 10022 or to the Company at 1515 Arapahoe Street, Tower 3, Suite 1000, Denver, Colorado 80202 or any other address the Company has provided. Although a revocation is effective if delivered to the Company, we request that either the original or photostatic copies of all revocations of consents be mailed or delivered to SRM Acquisition Company in care of Morrow & Co. at its address set forth above, so that we will be aware of all revocations and can more accurately determine if and when consents to the Proposals have been received from the holders of record on the record date for this consent solicitation of a majority of the outstanding shares. SPECIAL INSTRUCTIONS If you were a record holder of shares of common stock as of the close of business on the record date for this consent solicitation, you may elect to consent to, withhold consent to or abstain with respect to each Proposal by marking the "CONSENTS," "DOES NOT CONSENT" or "ABSTAIN" box, as applicable, underneath each Proposal on the accompanying WHITE consent card and signing, dating and returning it promptly in the enclosed post-paid envelope. In addition, you may withhold consent to the removal of any individual member of the board or to the election of any individual Nominee by writing that person's name on the consent card. However, the effectiveness of each Proposal is subject to, and conditioned on, the receipt of consents from the holders of record on the record date for this consent solicitation of a majority of the shares of common stock then outstanding to the removal of each member of the board immediately prior to the effectiveness of the removal Proposal (in the case of the removal Proposal) and to the election of each Nominee (in the case of the election Proposal). IF A STOCKHOLDER EXECUTES AND DELIVERS A WHITE CONSENT CARD, BUT FAILS TO CHECK A BOX MARKED "CONSENTS," "DOES NOT CONSENT" OR "ABSTAIN" FOR A PROPOSAL, THAT STOCKHOLDER WILL BE DEEMED TO HAVE CONSENTED TO THAT PROPOSAL, EXCEPT THAT THE STOCKHOLDER WILL NOT BE DEEMED TO CONSENT TO THE REMOVAL OF ANY INCUMBENT DIRECTOR WHOSE NAME IS WRITTEN IN THE SPACE THE INSTRUCTION TO THE REMOVAL PROPOSAL PROVIDES ON THE CARD OR TO THE ELECTION OF ANY CANDIDATE WHOSE NAME IS WRITTEN IN THE SPACE THE INSTRUCTION TO THE ELECTION PROPOSAL PROVIDES ON THE CARD. YOUR CONSENT IS IMPORTANT. PLEASE MARK, SIGN AND DATE THE ENCLOSED WHITE CONSENT CARD AND RETURN IT IN THE ENCLOSED POST-PAID ENVELOPE PROMPTLY. FAILURE TO RETURN YOUR CONSENT WILL HAVE THE SAME EFFECT AS VOTING AGAINST THE PROPOSALS. If your shares of common stock are held in the name of a brokerage firm, bank nominee or other institution, only it can execute a consent with respect to those shares and only on receipt of specific instructions from you. Accordingly, you should contact the person responsible for your account and give instructions for the WHITE consent card to be signed representing your shares of common stock. We urge you to confirm in writing your instructions to the person responsible for your account and provide a copy of those instructions to SRM Acquisition Company in care of Morrow & Co., Inc. at its address set forth above so that we will be aware of all instructions given and can attempt to ensure that those instructions are followed. 14 17 APPRAISAL RIGHTS The stockholders of the Company are not entitled to appraisal rights in connection with the Proposals or the offer. If the proposed merger is consummated, however, holders of shares at the effective time of the merger who do not vote in favor of, or consent to, that merger will have rights under section 262 of the DGCL to demand appraisal of their shares. Under section 262, stockholders who demand appraisal and comply with the applicable statutory procedures will be entitled to receive a judicial determination of the fair value of their shares (exclusive of any element of value arising from the accomplishment or expectation of the merger) and to receive payment of that fair value in cash, together with a fair rate of interest, if any. Any such judicial determination of the fair value of shares could be based on factors other than, or in addition to, the merger consideration per share in the merger or the market value of the shares. The value so determined could be more or less than the merger consideration per share to be paid in the proposed merger. If the Company and Shell enter into a merger agreement (other than with respect to the proposed merger), stockholders of the Company may or may not have appraisal rights under the DGCL in connection with the consummation of the merger contemplated thereby depending on the terms of that merger. EXECUTING A WRITTEN CONSENT IN FAVOR OF EITHER OR BOTH PROPOSALS WILL NOT PREVENT A HOLDER OF SHARES AFTER CONSUMMATION OF THE OFFER FROM SUBSEQUENTLY DEMANDING APPRAISAL OF THOSE SHARES IN CONNECTION WITH THE CONSUMMATION OF ANY MERGER. LITIGATION On March 7, 2001, Shell commenced litigation against the Company in the Chancery Court, New Castle County, Delaware seeking declaratory and injunctive relief to invalidate certain of the Company's bylaw provisions on grounds that the provisions are improper limitations on the ability of the Company's stockholders to act by written consent and to enjoin the Company from enforcing those provisions. On March 12, 2001, we joined Shell as a plaintiff in this lawsuit and we amended the original complaint to add the present members of the Company's board as defendants. In addition, on March 12, 2001, Shell commenced litigation against the Company in the United States District Court for the District of Delaware seeking declaratory and injunctive relief to (1) declare that the Schedule TO documents and exhibits thereto which we filed, including the offer to purchase, and this consent statement are proper and comply with all applicable securities laws, rules and regulations and (2) enjoin the Company from commencing litigation relating to our transaction other than in state and federal courts in Delaware. SRM ACQUISITION COMPANY If you have any questions about giving your consent or require assistance, please contact: MORROW & CO., INC. 445 Park Avenue, 5th Floor New York, New York 10022 Call Collect: (212) 754-8000 Banks and Brokerage Firms, Please Call: (800) 654-2468 Stockholders Please Call: (800) 607-0088 E-mail: barrett.info@morrowco.com Dated: March , 2001 15 18 ANNEX I SHARES HELD BY THE COMPANY'S DIRECTORS AND EXECUTIVE OFFICERS The following table is derived from the Company's Proxy Statement filed March 29, 2000 and, to our knowledge, summarizes information as of March 15, 2000 with respect to the ownership by each director, by each of the five most highly compensated executive officers, by all executive officers and directors as a group and by each other person who was the beneficial owner of more than five percent of the Company's common stock:
AMOUNT/NATURE NAME OF OF BENEFICIAL PERCENT OF CLASS BENEFICIAL OWNER OWNERSHIP BENEFICIALLY OWNED - ---------------- ------------- ------------------ William J. Barrett.......................................... 595,199(1)(8) 1.8% C. Robert Buford............................................ 642,866(2) 2.0% Derrill Cody................................................ 31,560(3) * Peter A. Dea................................................ 65,740(3) * James M. Fitzgibbons........................................ 28,500(3) * Hennie L.J.M. Gieskes....................................... 899,214 2.8% William W. Grant, III....................................... 39,250(3) * Bryan G. Hassler............................................ 34,741(3) * J. Frank Keller............................................. 139,197(3)(8) * A. Ralph Reed............................................... 141,666(4)(8) * James T. Rodgers............................................ 28,000(3)(8) * Philippe S.E. Schreiber..................................... 27,507(3) * All directors and executive officers as a group (16 persons).................................................. 1,998,036(5) 6.0% Franklin Resources, Inc. 777 Mariners Island San Mateo, CA 94403....................................... 3,627,021(6)(7) 11.1% State Farm Mutual Automobile Insurance Company and affiliates One State Farm Plaza Bloomington, IL 61710..................................... 2,936,938(6)(7) 9.0%
- --------------- * Less than 1% of the common stock outstanding. (1) Includes 90,412 shares owned by Mr. Barrett's wife, 230,000 shares owned by the Barrett Family L.L.L.P., a Colorado limited liability limited partnership for which Mr. Barrett and his wife are general partners and owners of an aggregate of 48.626622% of the partnership interests, and 360,000 shares underlying options that were exercisable or became exercisable within 60 days following March 15, 2000. Pursuant to Exchange Act Rule 16a-1(a)(4), Mr. Barrett disclaims ownership of all but 111,841 shares held by the Barrett Family L.L.L.P., which constitutes Mr. and Mrs. Barrett's proportionate share of the shares held by the Barrett Family L.L.L.P. (2) Includes 548,210 shares of which Zenith Drilling Corporation ("Zenith") is the record owner. Mr. Buford owns approximately 89% of the outstanding common stock of Zenith. Also includes 10,000 shares that are owned by Aguilla Corporation, which is owned by Mr. Buford's wife and adult children. Mr. Buford disclaims beneficial ownership of the shares held by Aguilla Corporation pursuant to Exchange Act Rule 16a-1(a)(4). The number of shares indicated also includes 20,500 shares underlying stock options that were exercisable or that became exercisable within 60 days following March 15, 2000. (3) Includes the following number of shares underlying options that were exercisable or that became exercisable within 60 days following March 15, 2000 that were held by each of the following persons: Derrill Cody, 31,300; Peter A. Dea, 56,157; James M. Fitzgibbons, 16,500; William W. Grant, III, 26,900; Bryan G. Hassler, 31,512; J. Frank Keller, 67,812; James T. Rodgers, 18,000; and Philippe S.E. Schreiber, 20,500. (4) Includes 6,700 shares owned by Mary C. Reed, Mr. Reed's wife, and 88,125 shares underlying options that were exercisable or that became exercisable within 60 days following March 15, 2000. I-1 19 (5) Includes shares owned by Zenith that are beneficially owned by Mr. Buford as described in note (2) and the aggregate of 737,306 shares underlying the options described in notes (1), (2), (3) and (4), an aggregate of 38,010 shares owned by six executive officers not named in the above table, and an aggregate of 185,800 shares underlying options that were exercisable or that became exercisable within 60 days following March 15, 2000 that were held by those six executive officers. (6) According to a Schedule 13G the named person filed with the SEC. (7) Includes shares affiliates of the named person (which collectively may constitute a "group") owned. (8) Messrs. Barrett, Keller, Reed and Rodgers no longer hold positions on the Company's board. I-2 20 ANNEX II INFORMATION CONCERNING PARTICIPANTS The following tables set forth the name and the present principal occupation or employment, and the name, principal business and address of any corporation or other organization in which such employment is carried on, of (1) the directors and executive officers of Shell and us who may solicit consents, (2) the Nominees and (3) certain employees and other representatives of those companies who may assist Morrow & Co., Inc. in soliciting consents from the Company's stockholders.
NAME POSITION - ---- -------- W. van de Vijver............................... Director/Chairman, President and Chief Executive Officer of SRM Acquisition Company Marvin E. Odum................................. Director and Vice President -- Development and Technology of SRM Acquisition Company
The business address of each of the above named directors and executive officers is SRM Acquisition Company, One Shell Plaza, 910 Louisiana, Houston, Texas 77002. NOMINEES Francis L. Durand 11746 Mission Trace San Antonio, Texas 78230 R. W. Leftwich Shell Oil Company One Shell Plaza 910 Louisiana Houston, TX 77002 J. Hugh Roff, Jr. Roff Resources LLC 333 Clay Street, Suite 4300 Houston, TX 77002 II-1 21 ANNEX III SHARES HELD BY PARTICIPANTS AND CERTAIN TRANSACTIONS BETWEEN ANY OF THEM AND THE COMPANY Shell, through us and another of its indirect wholly-owned subsidiaries, beneficially owns 107,100 shares of the Company's common stock. On March 9, 2001, Shell transferred beneficial and record ownership of 100 of those shares to us. No part of the purchase price or market value of any of the shares described in this paragraph was represented by funds borrowed or otherwise obtained for the purpose of acquiring or holding those shares. Cede & Co. is the record owner of the shares Shell and we beneficially own, other than the 100 shares described above and an additional 100 shares which Shell holds of record. Shell and we disclaim beneficial ownership of any shares owned by any pension plan of Shell or any affiliate of Shell. In the ordinary course of its business, Lehman Brothers engages in securities trading, market-making and brokerage activities and may, at any time, hold long or short positions and may trade or otherwise effect transactions in securities of the Company. [AS OF MARCH 9, 2001, LEHMAN BROTHERS DID NOT HOLD ANY SHARES OF THE COMPANY FOR ITS OWN ACCOUNT.] [NOTE: INSERT DISCLOSURE, IF ANY, CONCERNING RELATIONSHIPS/CONFLICTS BETWEEN SHELL/PURCHASER OFFICERS AND DIRECTORS AND THE FINANCIAL ADVISOR OR SUBJECT.] Except as this consent statement discloses, none of the Purchaser or Shell or their directors or executive officers, the Nominees or the employees or other representatives of the Purchaser or Shell named in Annex II owns any securities of the Company or any parent or subsidiary of the Company, beneficially or of record, has purchased or sold any of those securities within the past two years or is or was within the past year a party to any contract, arrangement or understanding with any person with respect to those securities. Except as disclosed in this Consent Statement, to the best knowledge of the Purchaser, Shell, their directors or executive officers, the Nominees and the employees and other representatives of the Purchaser or Shell named in Annex II, none of their associates beneficially owns, directly or indirectly, any securities of the Company. Except as this consent statement discloses, none of the Purchaser or Shell or their directors or executive officers, the Nominees, the employees or other representatives of the Purchaser or Shell named in Annex II, or, to their best knowledge, their associates has any arrangement or understanding with any person (1) with respect to any future employment by the Company or its affiliates or (2) with respect to future transactions to which the Company or any of its affiliates will or may be a party, nor any material interest, direct or indirect, in any transaction that has occurred since January 1, 2000 or any currently proposed transaction, or series of similar transactions, which the Company or any of its affiliates was or is to be a party and in which the amount involved exceeds $60,000. Certain Nominees, directors and executive officers of Shell or Purchaser and/or their respective associates may also be directors or officers of other companies and organizations that have engaged in transactions with the Company or its subsidiaries in the ordinary course of business since January 1, 2000, but Shell believes that the interest of those persons in those transactions is not of material significance. III-1 22 [FORM OF CONSENT CARD] PRELIMINARY COPY--SUBJECT TO COMPLETION WHITE SRM ACQUISITION COMPANY IN OPPOSITION TO THE CONSENT BOARD OF DIRECTORS CARD OF BARRETT RESOURCES CORPORATION Unless otherwise indicated below, the undersigned, a stockholder of record of Barrett Resources Corporation (the "Company") on ___________ ___, 2001 (the "Record Date"), hereby consents pursuant to Section 228(a) of the Delaware General Corporation Law with respect to all shares of common stock of the Company (the "Common Stock") held by the undersigned to the taking of the following actions without a meeting of the stockholders of the Company: 1. The removal without cause of all directors of the Company who are in office when this removal action becomes effective, including, without limitation, C. Robert Buford, Derrill Cody, Peter A. Dea, James M. Fitzgibbons, Hennie L. J. M. Gieskes, William W. Grant, III and Philippe S. E. Schreiber. [ ] CONSENTS [ ] DOES NOT CONSENT [ ] ABSTAIN INSTRUCTION: TO CONSENT, WITHHOLD CONSENT OR ABSTAIN FROM CONSENTING TO THE REMOVAL OF ALL THE ABOVE-NAMED DIRECTORS AND ANY OTHER DIRECTOR OR DIRECTORS WHO HOLD OFFICE AT THE TIME THE ACTION TAKEN BY THIS WRITTEN CONSENT BECOMES EFFECTIVE, CHECK THE APPROPRIATE BOX ABOVE. IF YOU WISH TO CONSENT TO THE REMOVAL OF CERTAIN OF THE ABOVE-NAMED DIRECTORS AND/OR CERTAIN OF THE DIRECTORS NOT NAMED ABOVE WHO ARE DIRECTORS OF THE COMPANY AT THE TIME THE ACTION TAKEN BY THIS WRITTEN CONSENT BECOMES EFFECTIVE, BUT NOT ALL OF THEM, CHECK THE "CONSENTS" BOX ABOVE AND WRITE THE NAME OF EACH PERSON YOU DO NOT WISH REMOVED IN THE FOLLOWING SPACE: ------------------------------------------------------------------ IF NO BOX IS MARKED ABOVE WITH RESPECT TO THIS PROPOSAL, THE UNDERSIGNED WILL BE DEEMED TO CONSENT TO SUCH PROPOSAL, EXCEPT THAT THE UNDERSIGNED WILL NOT BE DEEMED TO CONSENT TO THE REMOVAL OF ANY INCUMBENT DIRECTOR WHOSE NAME IS WRITTEN IN THE SPACE PROVIDED ABOVE. 2. The election of the following persons as directors of the Company to hold office until their successors are elected and qualified: Francis L. Durand, R. W. Leftwich, and J. Hugh Roff, Jr. (the "Nominees"). [ ] CONSENTS [ ] DOES NOT CONSENT [ ] ABSTAIN (CONTINUED AND TO BE DATED AND SIGNED ON REVERSE SIDE) 23 INSTRUCTION: TO CONSENT, WITHHOLD CONSENT OR ABSTAIN FROM CONSENTING TO THE ELECTION OF ALL THE ABOVE-NAMED PERSONS, CHECK THE APPROPRIATE BOX ABOVE. IF YOU WISH TO CONSENT TO THE ELECTION OF CERTAIN OF THE ABOVE-NAMED PERSONS, BUT NOT ALL OF THEM, CHECK THE "CONSENTS" BOX ABOVE AND WRITE THE NAME OF EACH SUCH PERSON YOU DO NOT WISH ELECTED IN THE FOLLOWING SPACE: ------------------------------------------------------------------ IF NO BOX IS MARKED ABOVE WITH RESPECT TO THIS PROPOSAL, THE UNDERSIGNED WILL BE DEEMED TO CONSENT TO SUCH PROPOSAL, EXCEPT THAT THE UNDERSIGNED WILL NOT BE DEEMED TO CONSENT TO THE ELECTION OF ANY CANDIDATE WHOSE NAME IS WRITTEN-IN IN THE SPACE PROVIDED ABOVE. IN THE ABSENCE OF DISSENT OR ABSTENTION BEING INDICATED ABOVE, THE UNDERSIGNED HEREBY CONSENTS TO EACH ACTION LISTED ABOVE. The effectiveness of the election proposal set forth above is subject to, and conditioned upon, the adoption of the removal proposal set forth above or the incumbent directors otherwise having ceased to be directors of the Company immediately prior to the election of directors pursuant to the election proposal. The effectiveness of the removal proposal is not subject to or conditioned upon the adoption of the election proposal set forth above. Please sign exactly as name appears on stock certificates or on label affixed hereto. When shares are held by joint tenants, both should sign. In case of joint owners, EACH joint owner should sign. When signing as attorney, executor, administrator, trustee, guardian, corporate officer, etc., give full title as such. DATED: -------------------------------------- --------------------------------------------- Signature --------------------------------------------- Signature, if held jointly --------------------------------------------- Title or Authority IN ORDER FOR YOUR CONSENT TO BE VALID, IT MUST BE DATED. PLEASE SIGN, DATE AND MAIL YOUR CONSENT PROMPTLY IN THE POSTAGE-PAID ENVELOPE ENCLOSED. EX-99.A1.K 11 h84893tex99-a1_k.txt COMPLAINT FILED IN UNITED STATES DISTRICT COURT 1 EXHIBIT (a)(1)(k) IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE SHELL OIL COMPANY, a Delaware ) corporation, and SRM ACQUISITION ) COMPANY, a Delaware corporation, ) ) Plaintiffs, ) ) v. ) Civil Action No. 01-161 ) BARRETT RESOURCES CORPORATION, ) a Delaware corporation, ) ) Defendant. ) COMPLAINT Plaintiffs Shell Oil Company ("Shell") and SRM Acquisition Company ("Purchaser") file this action seeking declaratory relief arising out of Purchaser's offer to purchase all outstanding shares of common stock of defendant Barrett Resources Corporation ("Barrett" or the "Company"). For their complaint against Barrett, plaintiffs allege, upon knowledge as to themselves and their own acts and upon information and belief as to all other matters, as follows: JURISDICTION AND VENUE 1. This Court has jurisdiction over this action pursuant to 15 U.S.C. Section 78aa, 28 U.S.C. Section 1331 and 28 U.S.C. Section 1337(a). 2. Venue in this Court is proper pursuant to 15 U.S.C. Section 78aa and 28 U.S.C. Section 1391(b). THE PARTIES 3. Plaintiff Shell is a Delaware corporation with its principal executive offices located in Houston, Texas. Shell and its subsidiaries are engaged, principally in the United States, in the exploration for, and development, production, purchase, transportation and marketing of, crude oil 2 and natural gas, and the purchase, manufacture, transportation and marketing of oil and chemical products. In addition, subsidiaries of Shell are engaged in the exploration for, and production of, crude oil and natural gas outside the United States on a limited basis. Shell recently acquired over 100,000 shares of Barrett common stock in open market transactions. 4. Purchaser is a Delaware corporation and an indirect wholly-owned subsidiary of Shell. Purchaser was organized to acquire the Company and has not conducted any unrelated activities since its organization. Shell has transferred 100 shares of Barrett common stock to Purchaser. 5. Defendant Barrett is a Delaware corporation with its principal executive offices located in Denver, Colorado. In its public filings, Barrett states that it is an independent natural gas and crude oil exploration company that is also involved in natural gas gathering, marketing and trading activities, and that its properties are primarily focused in the Rocky Mountain region of Colorado, Wyoming and Utah, the Mid-Continent region of Kansas and Oklahoma and the Gulf of Mexico region of offshore Texas and Louisiana. 6. Barrett's common stock is registered pursuant to Section 12(b) of the Securities Exchange Act of 1934 (the "Exchange Act"), 15 U.S.C. Section 78l(b), and is listed and traded on the New York Stock Exchange. THE TENDER OFFER 7. Shell and Purchaser commenced today a fully-funded, non-coercive, non- discriminatory, all-cash, all-shares tender offer for the outstanding shares of Barrett common stock that are not already owned by Shell or its direct or indirect subsidiaries (the "Tender Offer"). In connection with the commencement of the Tender Offer, Shell issued today a press release summarizing the terms of the Tender Offer (the "Press Release"), and a summary advertisement of 2 3 the Tender Offer was published in the March 12, 2001 national edition of The Wall Street Journal (the "Summary Advertisement"). 8. Barrett stockholders whose shares are purchased by Purchaser in the Tender Offer will receive $55.00 per share in cash, representing approximately a 24% premium above the closing price of Barrett's stock on the New York Stock Exchange on February 28, 2001, the last trading day prior to Shell's delivery to Barrett of a letter proposing the transaction and offering $55.00 per share for Barrett common stock. 9. The Tender Offer is the initial step in a two-step transaction pursuant to which Shell, through Purchaser, offers to acquire all of the outstanding shares of Barrett. If successful, the Tender Offer will be followed by a merger or similar business combination with Purchaser or another direct or indirect subsidiary of Shell (the "Proposed Merger," and together with the Tender Offer, the "Proposed Acquisition"). Pursuant to the Proposed Merger, each then outstanding share of Barrett (other than shares owned by Shell or any of its subsidiaries, including the Company's shares held in treasury and shares owned by stockholders who perfect available appraisal rights) would convert into the right to receive an amount in cash equal to the price paid in the Tender Offer. 10. The Tender Offer is conditioned upon, among other things, (1) there being validly tendered and not properly withdrawn prior to the expiration date that number of shares that, together with any shares owned by the Purchaser, Shell or Shell's other direct or indirect subsidiaries, would constitute at least a majority of all outstanding shares on a fully diluted basis on the date of purchase, (2) the Company's preferred stock purchase rights having been redeemed by the Board of Directors of the Company, or the Purchaser being satisfied, in its sole discretion, that the rights have been invalidated or are otherwise inapplicable to the Tender Offer and the Proposed Merger, (3) the acquisition of shares pursuant to the Tender Offer and the Proposed Merger having been approved 3 4 pursuant to Section 203 of the Delaware General Corporation Law ("Section 203"), or the Purchaser being satisfied, in its sole discretion, that the provisions of Section 203 are otherwise inapplicable to the acquisition of shares pursuant to the Tender Offer and the Proposed Merger, (4) the Purchaser being satisfied, in its sole discretion, that the provisions of Article IV of the Company's bylaws are inapplicable to the acquisition of shares pursuant to the Tender Offer and the Proposed Merger and (5) the waiting periods under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 applicable to the purchase of shares pursuant to the Tender Offer having expired or been terminated. 11. In August 1997, the Board of Directors of Barrett (the "Barrett Board") adopted a stockholder rights agreement (the "Rights Agreement"), commonly known as a "poison pill," designed to thwart any acquisition of Barrett that does not have the approval of the Barrett Board. The Rights Agreement provides the Barrett Board with the power to summarily prevent the consummation of even an all-cash, all-shares, non-coercive, non-discriminatory tender offer by imposing a severe economic penalty (in the form of massive dilution) on a potential acquirer. The Rights Agreement was adopted without approval of Barrett's stockholders and, if it remains in effect and applicable to the Tender Offer, it will restrict the right of Barrett's stockholders to decide whether to accept Purchaser's premium offer for their shares. 12. Similarly, Barrett's Board may be able to prevent Shell from consummating the Proposed Merger for at least three years unless the Board exempts the Proposed Acquisition from the restrictions imposed by Section 203, Delaware's Business Combination Statute. Section 203, which applies to any Delaware corporation that has not opted out of its coverage, provides that if a person acquires 15% or more of a corporation's voting stock (thereby becoming an "interested stockholder" under the statute), such interested stockholder may not engage in a "business combination" with the corporation (defined to include a merger or consolidation) for three years after 4 5 becoming an interested stockholder, unless: (i) prior to the 15% acquisition, the board of directors has approved either the acquisition resulting in the stockholder becoming an interested stockholder or the business combination; (ii) the interested stockholder acquires 85% of the corporation's voting stock in the same transaction in which it crosses the 15% threshold; or (iii) on or subsequent to the time of the 15% acquisition, the business combination is approved by the board of directors and authorized at an annual or special meeting of the stockholders (and not by written consent) by the affirmative vote of at least 66 2/3% of the outstanding voting stock which is not owned by the interested stockholder. Barrett is subject to Section 203 and has chosen not to opt out of the statute's coverage. 13. The Tender Offer is, and will continue to be, in full compliance with all applicable federal laws and regulations governing tender offers, i.e., the provisions of the Williams Act, embodied in Sections 14(d) and 14(e) of the Exchange Act, 15 U.S.C. Sections 78n(d) and (e), and the rules and regulations promulgated thereunder by the Securities and Exchange Commission ("SEC"). In accordance with the Exchange Act and the rules and regulations promulgated thereunder by the SEC, Purchaser and Shell commenced the Tender Offer and published a Summary Advertisement in today's Wall Street Journal. In connection with the Tender Offer and in accordance with the Exchange Act and the rules and regulations promulgated thereunder by the SEC, Purchaser and Shell are filing today a Schedule TO with the SEC (the "Schedule TO") pursuant to Section 14(d)(1) of the Exchange Act and Rule 14d-3 promulgated thereunder, 17 C.F.R. Section 240.14d-3. 14. Section 14(d) of the Exchange Act, 15 U.S.C. Section 78n(d), and the rules and regulations promulgated thereunder by the SEC, require that any person or entity making a tender offer for beneficial ownership of more than five percent of a class of registered equity securities file and disclose certain specified information with respect to the tender offer. Any such bidder must 5 6 disclose, among other things, its identity and background, past contacts, transactions or negotiations between the bidder and the company whose stock the bidder seeks to acquire, the source and amount of funds needed for the tender offer, and any plans the bidder may have to change the capitalization, corporate structure or business of the company whose stock it seeks to acquire. 15. In addition, Section 14(e) of the Exchange Act, 15 U.S.C. Section 78n(e), makes it "unlawful for any person to make any untrue statement of a material fact or omit to state any material fact necessary in order to make the statement made, in light of the circumstances under which they are made, not misleading, or to engage in any fraudulent, deceptive, or manipulative acts or practice in connection with any tender offer." Purchaser and Shell have complied fully with the Exchange Act and all rules and regulations promulgated thereunder. 16. In connection with the Tender Offer, Purchaser is in the process of disseminating to Barrett's stockholders an offer to purchase containing all material information required by applicable law to be disclosed (the "Offer to Purchase"). Among other matters, the Offer to Purchase discloses the solicitation of written consents being undertaken by Purchaser, as more fully described below. In addition, Purchaser today filed with the SEC a Schedule 14A which describes the consent solicitation more fully. 17. Despite the significant benefits of the Proposed Acquisition for the Barrett stockholders, Barrett has refused to accept the Shell offer. Barrett's efforts will, in all likelihood, also include the commencement of baseless litigation against plaintiffs under the provisions of the federal securities laws regulating the solicitation of written consents, tender offers and acquisition efforts. 6 7 BARRETT REJECTS THE SHELL OFFER 18. On February 23, 2001, at the request of Mr. Walter van de Vijver, the President and Chief Executive Officer of Shell Exploration & Production Company, an exploration and production subsidiary of Shell, a representative of Lehman Brothers Inc. ("Lehman Brothers"), the financial advisor to Shell, telephoned Mr. Peter A. Dea, the Chief Executive Officer of the Company. On February 26, 2001, Mr. Dea returned the telephone call and the representative of Lehman Brothers expressed Shell's interest in pursuing a business arrangement with the Company and asked if Lehman Brothers could facilitate a meeting between Mr. van de Vijver and Mr. Dea. Mr. Dea responded that the Company wanted to pursue its present strategy and that he was not interested in meeting with Mr. van de Vijver. 19. On March 1, 2001, Mr. van de Vijver telephoned Mr. Dea to propose Shell's acquisition of the Company at a price of $55.00 per share in cash. Mr. Dea expressed thanks for Shell's interest but further responded that the Company had no interest beyond executing its existing strategy. Mr. Dea indicated that he would notify the Barrett Board of Shell's offer. 20. Mr. van de Vijver then delivered a letter to Mr. Dea on March 1, 2001, in which Mr. van de Vijver confirmed Shell's proposal contemplating a transaction in which a subsidiary of Shell would make a tender offer for all of the outstanding shares of the Company for $55.00 per share in cash, followed by a second step merger at the same price. Mr. van de Vijver also informed Mr. Dea that if the Company was unwilling to engage in substantive negotiations, Shell intended to commence the cash tender offer previously described within the next several days. Mr. van de Vijver requested a response from Mr. Dea no later than the close of business on March 5, 2001. 7 8 21. On March 5, 2001, Mr. van de Vijver tried to telephone Mr. Dea, but his calls initially went unanswered. Later that day, Mr. Dea sent Mr. van de Vijver a letter, declining once more to engage in substantive negotiations, but asking for more time to respond. 22. After receiving Mr. Dea's letter, on March 5, 2001, Mr. van de Vijver telephoned Mr. Dea to again offer to meet to discuss Shell's proposal, but Mr. Dea responded that he would discuss a possible meeting with several directors of the Company and would telephone Mr. van de Vijver on March 6, 2001. On March 6, 2001, Mr. Dea telephoned Mr. van de Vijver to state that he was not interested in a meeting at that time and that the Company would consider Shell's offer at its regularly scheduled board meeting on March 7-8, 2001. 23. On March 7, 2001, Shell publicly released the text of its March 1 letter and issued a press release announcing its acquisition proposal. Shell also responded to Barrett's March 5 letter, reiterating Shell's desire to meet with Barrett and to engage in substantive negotiations concerning Shell's acquisition proposal. Shell also notified Barrett of the pendency of a lawsuit filed in the Delaware Court of Chancery and requested that the Barrett Board immediately remove certain invalid bylaw provisions which could pose impediments to Shell's acquisition proposal. 24. On March 8, 2001, after declining Shell's attempts to meet with the Company, Barrett publicly announced that it had rejected Shell's proposal for a transaction providing consideration of $55.00 per share in cash for the Company's outstanding shares, and indicated that the Barrett Board had "authorized management to pursue strategic alternatives, including seeking proposals from a number of qualified parties." Despite Shell's request, the Barrett Board apparently took no action to remedy its invalid bylaw provisions. 25. In light of Barrett's failure to accept Shell's acquisition proposal, and having been asked by Barrett's lawyers to provide a waiver of conflicts that would permit Barrett's lawyers to be 8 9 adverse in litigation against Shell, the current Barrett Board cannot be expected to facilitate the Proposed Acquisition, but instead can be expected to maintain Barrett's anti-takeover devices and to oppose actively the Proposed Acquisition. Because Barrett has failed to accept the substantial benefits of the Proposed Acquisition, Shell is taking its offer directly to the Barrett stockholders. THE WRITTEN CONSENT SOLICITATION 26. In furtherance of the Proposed Acquisition, Shell publicly disclosed today its intention to solicit written consents from Barrett's stockholders to remove the members of the Barrett Board in office at the time the removal becomes effective and replace them with directors nominated by Purchaser (the "Consent Solicitation"). Shell's nominees are willing to consider, consistent with the fulfillment of their fiduciary duties, whether to take such actions as they deem necessary or appropriate to expedite the prompt consummation of the Proposed Acquisition, including: (i) whether to redeem the Rights (or amend the Rights Agreement to make it inapplicable to the Proposed Acquisition), (ii) whether to approve the Proposed Acquisition under Section 203, and (iii) whether to render inapplicable, if otherwise applicable, article IV of the Company's bylaws to the Proposed Acquisition. If a proposal has been made respecting a transaction that is determined to be superior to the Proposed Acquisition for the Company's stockholders, Shell's nominees are also willing to consider, consistent with the fulfillment of their fiduciary duties, whether to take such actions as they deem necessary or appropriate to facilitate that proposed transaction. 27. Section 14(a) of the Exchange Act, 15 U.S.C. Section 78n(a), and the rules and regulations promulgated thereunder by the SEC, require that a person soliciting an authorization with respect to any registered security file and disclose certain specific information with respect to the solicitation. Any such person must disclose, among other things, its identity and any substantial interest of the solicitor in the matters to be acted upon. In addition, Rule 14a-9, 17 C.F.R. Section 240.14a- 9 10 9, promulgated by the SEC under Section 14(a) of the Exchange Act, provides that "[n]o solicitation subject to this regulation shall be made ... containing any statement of which, at the time and in the light of the circumstances under which it is made, is false or misleading with respect to any material fact, or which omits to state any material fact necessary in order to make the statements therein not false or misleading or necessary to correct any statement in any earlier communication with respect to the solicitation of a proxy for the same meeting or subject matter which has become false or misleading." 28. Purchaser's preliminary written consent solicitation materials are being filed today with the SEC (the "Consent Solicitation Materials"). The Consent Solicitation Materials are in full compliance with Section 14(a) of the Exchange Act and the rules and regulations promulgated thereunder by the SEC, including Rule 14a-9. The preliminary Consent Solicitation Materials disclose, among other things: a. the belief of Purchaser that its efforts to solicit written consents comply with Delaware law; and b. Purchaser's intent, upon receipt of the requisite number of written consents, to (i) remove the members of the Barrett Board in office at the time the removal becomes effective and (ii) elect Purchaser's nominees to the Barrett Board. COUNT I DECLARATORY RELIEF 29. Plaintiffs repeat and reallege each and every allegation set forth in paragraphs 1 through 28 as if fully set forth herein. 30. The Declaratory Judgment Act, 28 U.S.C. Section 2201, provides that "[i]n a case of actual controversy within its jurisdiction, ... any court of the United States, upon the filing of an appropriate 10 11 pleading, may declare the rights and other legal relations of any interested party seeking such declaration." Plaintiffs are entitled to a declaratory judgment that the Schedule TO and all exhibits thereto, and the Consent Solicitation Materials, are proper and comply with all applicable securities laws, rules and regulations. 31. Although the Proposed Acquisition is fairly and attractively priced, plaintiffs reasonably expect that Barrett will thwart or delay plaintiffs' lawful attempts to consummate the Tender Offer. Plaintiffs believe Barrett will seek to delay and defeat the Tender Offer through efforts including the filing of a meritless suit claiming that public disclosures and filings made by plaintiffs in conjunction with the Tender Offer and the Consent Solicitation violate applicable federal securities laws and regulations. Indeed, Barrett's lawyers have already requested that Shell provide a waiver of conflicts to allow Barrett's lawyers to be adverse in litigation against Shell. Thus, there is a substantial controversy between parties having adverse interests which is of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. 32. In the absence of declaratory relief, plaintiffs will suffer irreparable harm. As evidenced by the course of action that Barrett has pursued to date and the actions taken generally by companies that receive unsolicited acquisition proposals, Barrett will likely defend against the Proposed Acquisition and the Consent Solicitation by, among other things, filing claims designed to delay or defeat the Proposed Acquisition and the Consent Solicitation. A declaratory judgment that the disclosures in the Schedule TO, the Offer to Purchase and the Consent Solicitation Materials comply with all applicable federal laws will serve the purpose of adjudicating the interests of the parties, resolving any complaints concerning the propriety of the Tender Offer or the Consent Solicitation under federal law, and permitting an otherwise lawful transaction to proceed. 11 12 33. Plaintiffs therefore request pursuant to the Declaratory Judgment Act, 28 U.S.C. Sections 2201 and 2202, that this Court enter a declaratory judgment that the public disclosures and documents filed with the SEC by plaintiffs and which are being disseminated to Barrett stockholders in connection with the Tender Offer and the Consent Solicitation comply fully with all applicable provisions of law. COUNT II INJUNCTIVE RELIEF 34. Plaintiffs repeat and reallege each and every allegation set forth in paragraphs 1 through 33 as if fully set forth herein. 35. This Court is the proper forum for plaintiffs' claims to be brought because the Company is a Delaware corporation and there is companion action relating solely to state law-based claims in the Delaware Court of Chancery. 36. Any attempt by the Company or any of its representatives to commence litigation elsewhere could only be for the sole purpose of delaying resolution of the claims in this forum. Accordingly, plaintiffs request that this Court enjoin Barrett or anyone acting on its behalf or in concert with it from commencing litigation relating to the Tender Offer, the Proposed Merger, the Proposed Acquisition, the Consent Solicitation, this action or any other matter related thereto in another forum. 37. Plaintiffs have no adequate remedy at law. WHEREFORE, plaintiffs respectfully request that this Court: a. declare that plaintiffs have disclosed all information required by, and are otherwise in all respects in compliance with, all applicable laws and other obligations, including, without limitation, Sections 14(a), 14(d) and 14(e) of the Exchange Act and any other federal 12 13 securities laws, rules or regulations deemed or claimed to be applicable to the Schedule TO, the Tender Offer, the Consent Solicitation or the Consent Solicitation Materials; b. enjoin Barrett or anyone acting on its behalf or in concert with it from commencing litigation relating to the Tender Offer, the Proposed Merger, the Proposed Acquisition, the Consent Solicitation, this action or any other matter related thereto in another forum; c. award plaintiffs their costs and disbursements in this action, including reasonable attorneys' fees; and d. grant plaintiffs such other and further relief as this Court may deem just and proper. OF COUNSEL: James Edward Maloney /s/ Raymond J. DiCamillo Paul R. Elliott ----------------------------------- Baker Botts L.L.P. Jesse A. Finkelstein (#1090) One Shell Plaza Daniel A. Dreisbach (#2583) 910 Louisiana Raymond J. DiCamillo (#3188) Houston, Texas 77002 Peter B. Ladig (#3513) (713) 229-1234 Thad J. Bracegirdle (#3691) Richards, Layton & Finger One Rodney Square P.O. Box 551 Dated: March 12, 2001 Wilmington, Delaware 19899 (302) 658-6541 Attorneys for Plaintiffs 13 EX-99.A1.L 12 h84893tex99-a1_l.txt AMENDED COMPLAINT FILED IN CHANCERY COURT 1 EXHIBIT (a)(1)(L) IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY SHELL OIL COMPANY, a Delaware ) corporation, and SRM ACQUISITION ) COMPANY, a Delaware corporation, ) ) Plaintiffs, ) ) v. ) Civil Action No. 18709 ) BARRETT RESOURCES CORPORATION, ) a Delaware corporation, C. ROBERT ) BUFORD, DERRILL CODY, PETER A. ) DEA, JAMES M. FITZGIBBONS, HENNIE ) L.J.M. GIESKES, WILLIAM W. GRANT, III ) and PHILLIPPE S.E. SCHREIBER, ) ) Defendants. ) AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Plaintiffs Shell Oil Company ("Shell") and SRM Acquisition Company, an indirect wholly- owned subsidiary of Shell ("SRM"), for their amended complaint against defendants Barrett Resources Corporation ("Barrett" or the "Company"), C. Robert Buford, Derrill Cody, Peter A. Dea, James M. Fitzgibbons, Hennie L.J.M. Gieskes, William W. Grant, III and Phillippe S. Schreiber (collectively, "Defendants"), allege, upon knowledge as to themselves and their own acts and upon information and belief as to all other matters, as follows: SUMMARY OF THIS ACTION 1. This action concerns invalid provisions in Barrett's bylaws (the "Barrett Bylaws") that unlawfully restrict the statutory right of the Company's stockholders to act by written consent. In late February 2001, Shell commenced efforts to initiate discussions with Barrett concerning a possible business arrangement. After efforts to initiate negotiations failed, on March 1, 2001 Shell 2 sent a letter to Barrett offering to purchase all of the outstanding shares of Barrett common stock not owned by Shell or its direct or indirect subsidiaries for $55.00 per share in cash. The letter emphasized Shell's commitment to proceed with a cash tender offer for all of Barrett's outstanding shares, but expressed Shell's preference to negotiate, and requested a response by the close of business on March 5, 2001. On March 5, 2001, Barrett sent a letter to Shell declining once more to engage in substantive negotiations, but asking for more time to respond to Shell. 2. On March 7, 2001, Shell publicly released the text of its March 1 letter and issued a press release announcing its acquisition proposal. Shell also responded to Barrett's March 5 letter, reiterating Shell's desire to meet with Barrett and to engage in substantive negotiations concerning Shell's acquisition proposal. Shell also notified Barrett of this lawsuit and requested that Barrett's Board of Directors (the "Barrett Board") immediately remove the invalid bylaw provisions which could impede Shell's acquisition proposal. 3. On March 8, 2001, after declining Shell's attempts to meet with the Company, Barrett publicly announced that it had rejected Shell's proposal for a transaction providing consideration of $55.00 per share in cash for the Company's outstanding shares, and indicated that the Barrett Board had "authorized management to pursue strategic alternatives, including seeking proposals from a number of qualified parties." Despite Shell's request, the Barrett Board apparently took no action to remedy its invalid bylaw provisions. Accordingly, this action seeks declaratory and injunctive relief against the enforcement of the invalid bylaws. THE PARTIES 4. Plaintiff Shell is a Delaware corporation with its principal executive offices located in Houston, Texas. Shell and its subsidiaries are engaged, principally in the United States, in the exploration for, and development, production, purchase, transportation and marketing of, crude oil -2- 3 and natural gas, and the purchase, manufacture, transportation and marketing of oil and chemical products. In addition, subsidiaries of Shell are engaged in the exploration for, and production of, crude oil and natural gas outside the United States on a limited basis. Shell recently acquired over 100,000 shares of Barrett common stock in open market transactions. 5. SRM is a Delaware corporation and an indirect wholly-owned subsidiary of Shell. SRM was organized to acquire the Company and has not conducted any unrelated activities since its organization. Shell has transferred 100 shares of Barrett common stock to SRM. 6. Defendant Barrett is a Delaware corporation with its principal executive offices located in Denver, Colorado. In its public filings, Barrett states that it is an independent natural gas and crude oil exploration company that is also involved in natural gas gathering, marketing and trading activities, and that its properties are primarily focused in the Rocky Mountain region of Colorado, Wyoming and Utah, the Mid-Continent region of Kansas and Oklahoma and the Gulf of Mexico region of offshore Texas and Louisiana. 7. Defendant Peter A. Dea has been employed by Barrett since 1994 and was elected Chief Executive Officer, Vice Chairman and a director in 1999. As of April 2000, Peter A. Dea was elected the Chairman of the Barrett Board. 8. Defendants C. Robert Buford, Derrill Cody, James M. Fitzgibbons, Hennie L.J.M. Gieskes, William W. Grant, III, and Phillippe S. E. Schreiber are the remaining directors of Barrett (with Dea, the "Director Defendants"). The Director Defendants, as directors of Barrett, owe fiduciary duties of loyalty, care and good faith to Barrett's stockholders. FACTUAL BACKGROUND 9. On February 23, 2001, at the request of Mr. Walter van de Vijver, the President and Chief Executive Officer of Shell Exploration & Production Company, an exploration and production -3- 4 subsidiary of Shell, a representative of Lehman Brothers Inc. ("Lehman Brothers"), the financial advisor to Shell, telephoned Mr. Dea. On February 26, 2001, Mr. Dea returned the telephone call and the representative of Lehman Brothers expressed Shell's interest in pursuing a business arrangement with the Company and asked if Lehman Brothers could facilitate a meeting between Mr. van de Vijver and Mr. Dea. Mr. Dea responded that the Company wanted to pursue its present strategy and that he was not interested in meeting with Mr. van de Vijver. 10. On March 1, 2001, Mr. van de Vijver telephoned Mr. Dea to propose Shell's acquisition of the Company at a price of $55.00 per share in cash. Mr. Dea expressed thanks for Shell's interest but further responded that the Company had no interest beyond executing its existing strategy. Mr. Dea indicated that he would notify the Barrett Board of Shell's offer. 11. Mr. van de Vijver then delivered a letter to Mr. Dea on March 1, 2001, in which Mr. van de Vijver confirmed Shell's proposal contemplating a transaction in which a subsidiary of Shell would make a tender offer for all of the outstanding shares of the Company for $55.00 per share in cash, followed by a second step merger at the same price. Mr. van de Vijver also informed Mr. Dea that if the Company was unwilling to engage in substantive negotiations, Shell intended to commence the cash tender offer previously described within the next several days. Mr. van de Vijver requested a response from Mr. Dea no later than the close of business on March 5, 2001. 12. On March 5, 2001, Mr. van de Vijver tried to telephone Mr. Dea, but his calls initially went unanswered. Later that day, Mr. Dea sent Mr. van de Vijver a letter, declining once more to engage in substantive negotiations, but asking for more time to respond. 13. After receiving Mr. Dea's letter, on March 5, 2001, Mr. van de Vijver telephoned Mr. Dea to again offer to meet to discuss Shell's proposal, but Mr. Dea responded that he would discuss a possible meeting with several directors of the Company and would telephone Mr. van de Vijver -4- 5 on March 6, 2001. On March 6, 2001, Mr. Dea telephoned Mr. van de Vijver to state that he was not interested in a meeting at that time and that the Company would consider Shell's offer at its regularly scheduled board meeting on March 7-8, 2001. 14. On March 7, 2001, Shell publicly released the text of its March 1 letter and issued a press release announcing its acquisition proposal. Shell also responded to Barrett's March 5 letter, reiterating Shell's desire to meet with Barrett and to engage in substantive negotiations concerning Shell's acquisition proposal. Shell also notified Barrett of this lawsuit and requested that the Barrett Board immediately remove the invalid bylaw provisions which could pose impediments to Shell's acquisition proposal. 15. On March 8, 2001, after declining Shell's attempts to meet with the Company, Barrett publicly announced that it had rejected Shell's proposal for a transaction providing consideration of $55.00 per share in cash for the Company's outstanding shares, and indicated that the Barrett Board had "authorized management to pursue strategic alternatives, including seeking proposals from a number of qualified parties." Despite Shell's request, the Barrett Board apparently took no action to remedy its invalid bylaw provisions. THE BARRETT BYLAWS 16. The Barrett Bylaws contain a number of invalid provisions designed specifically to thwart the exercise of the stockholders' statutory right to act by written consent. 17. Section 3 of Article III of the Barrett Bylaws (the "Advance Notice Bylaw") provides in relevant part: Nominations by stockholders for directors to be elected by written consent of stockholders shall be made by notice in writing, delivered or mailed by first class United States mail, postage prepaid, to the secretary of the corporation not less than 60 days nor more than 90 days prior to the first solicitation of any written consents of stockholders for the election of those nominees. (emphasis supplied). -5- 6 The Advance Notice Bylaw further provides that "[n]o person shall be eligible for election as a director of the Corporation unless nominated in accordance with procedure set forth in this Section." 18. The Barrett Bylaws also further attempt to restrict the ability of the stockholders to act by written consent. Article IX, Section 4 of the Barrett Bylaws provides in part as follows: These bylaws may be altered, amended or repealed or new bylaws may be adopted by the board of directors or by the stockholders in the manner provided in this Article IX, Section 4 at any meeting, but not by written consent, of the stockholders. In order for the board of directors to effect an alteration, amendment or repeal of these bylaws or to adopt new bylaws, written notice containing the proposed alteration, amendment, repeal, or new bylaws must be provided to all the directors of the corporation not less than 30 days prior to the meeting of directors at which the proposal is to be considered unless the proposal is approved by at least 75 percent of all directors including 80 percent of Independent Directors (as defined in Article IV, Section 9 of these bylaws together with other capitalized terms used in Article IX of these bylaws). In order for the stockholders to effect an alteration, amendment, or repeal of these bylaws or to adopt new bylaws, written notice containing the proposed alteration, amendment, repeal, or new bylaws has been provided to the secretary and all the directors of the corporation not more than seven days after the corporation gives notice of the meeting of stockholders at which the proposal is to be considered. (emphasis supplied). 19. Barrett's certificate of incorporation contains no provision limiting the right of stockholders to act by written consent or imposing any notice requirements for taking action by written consent. Thus, Barrett purports to limit the right of its stockholders to act by written consent through the Company's bylaws, not its certificate of incorporation. Such a restriction in the Barrett Bylaws is plainly in violation of Delaware law. By failing to remedy this violation, the Director Defendants are entrenching themselves and are improperly interfering with the voting rights of Barrett's stockholders in violation of their fiduciary duties. -6- 7 COUNT I (DECLARATORY AND INJUNCTIVE RELIEF: ADVANCE NOTICE BYLAW) 20. Plaintiffs repeat and reallege each and every allegation set forth in paragraphs 1 through 19 as if fully set forth herein. 21. Article III, Section 3 of the Barrett Bylaws purports to restrict the ability of the stockholders to act by written consent. Article III, Section 3 requires stockholders wishing to act by written consent to elect members of the Barrett Board first to nominate the proposed board member or members and give notice thereof at least 60 days in advance of the first solicitation of written consents for the election of those nominees. 22. This purported limitation on the ability of the stockholders to act by written consent in the Barrett Bylaws violates 8 Del. C. Section 228. 23. Plaintiffs have no adequate remedy at law. COUNT II (DECLARATORY AND INJUNCTIVE RELIEF: AMENDMENTS TO THE BYLAWS BY WRITTEN CONSENT) 24. Plaintiffs repeat and reallege each and every allegation set forth in paragraphs 1 through 23 as if fully set forth herein. 25. Article IX, Section 4 of the Barrett Bylaws purports to deny the right of the stockholders of Barrett to act by written consent to amend the Barrett Bylaws. 26. This purported limitation on the ability of stockholders to act by written consent in the Barrett Bylaws violates 8 Del. C. Section 228. 27. Plaintiffs have no adequate remedy at law. COUNT III (BREACH OF FIDUCIARY DUTY) 28. Plaintiffs repeat and reallege each and every allegation set forth in paragraphs 1 -7- 8 through 27 as if fully set forth herein. 29. The Director Defendants owe Barrett's stockholders the highest duties of care, loyalty and good faith. 30. The Advance Notice Bylaw and the purported prohibition on the ability of the stockholders to amend the Barrett Bylaws by written consent are invalid under Delaware law. Shell informed Barrett of such invalidity and requested that the Director Defendants take action to remove those provisions from the Barrett Bylaws. 31. The failure of the Director Defendants to remedy the invalid provisions of the Barrett Bylaws constitutes unlawful entrenchment and a breach of fiduciary duty. There is no compelling justification for the unlawful actions of the Director Defendants in thwarting the exercise of stockholder voting rights. 32. Plaintiffs have no adequate remedy at law. WHEREFORE, plaintiffs respectfully request that this Court: a. declare that the Advance Notice Bylaw is invalid as a violation of 8 Del. C. Section 228 and enjoin the Defendants or anyone acting on their behalf or in concert with them from enforcing the Advance Notice Bylaw; b. declare that the purported prohibition on the ability of the stockholders to amend the Barrett Bylaws by written consent is invalid as a violation of 8 Del. C. Section 228 and enjoin the Defendants or anyone acting on their behalf or in concert with them from enforcing such provision; c. declare that the Director Defendants have breached their fiduciary duties by failing to repeal or amend the Advance Notice Bylaw and the purported prohibition on the ability of the stockholders to amend the Barrett Bylaws by written consent; -8- 9 d. award plaintiffs their costs and disbursements in this action, including reasonable attorneys' and experts' fees; and e. grant plaintiffs such other and further relief as this Court may deem just and proper. OF COUNSEL: James Edward Maloney /s/ Peter B. Ladig Paul R. Elliott ------------------ Baker Botts L.L.P. Jesse A. Finkelstein One Shell Plaza Daniel A. Dreisbach 910 Louisiana Raymond J. DiCamillo Houston, Texas 77002 Peter B. Ladig (713) 229-1234 Kelly C. Ashby Richards, Layton & Finger One Rodney Square P.O. Box 551 Wilmington, Delaware 19899 (302) 658-6541 Dated: March 12, 2001 Attorneys for Plaintiffs -9- -----END PRIVACY-ENHANCED MESSAGE-----