-----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, T6aWRnMSkrDi/DbkciSBHzvyBGjGS55Hq4Rs3rXyXkQ5ZyqAkl+5JQ8AXdhcLj1W i5xIHm8dbyW//NDlfWEOlA== 0000950129-02-001938.txt : 20020416 0000950129-02-001938.hdr.sgml : 20020416 ACCESSION NUMBER: 0000950129-02-001938 CONFORMED SUBMISSION TYPE: SC TO-T/A PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 20020415 GROUP MEMBERS: ECM ACQUISITION COMPANY GROUP MEMBERS: SANTOS INTERNATIONAL HOLDINGS PTY LTD SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: ESENJAY EXPLORATION INC CENTRAL INDEX KEY: 0000901611 STANDARD INDUSTRIAL CLASSIFICATION: CRUDE PETROLEUM & NATURAL GAS [1311] IRS NUMBER: 731421000 STATE OF INCORPORATION: OK FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC TO-T/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-48068 FILM NUMBER: 02611196 BUSINESS ADDRESS: STREET 1: 500 N WATER STREET STREET 2: SUITE 1100 CITY: CORPUS CHRISTI STATE: TX ZIP: 78471 BUSINESS PHONE: 5128837464 MAIL ADDRESS: STREET 1: 500 DALLAS STREET STREET 2: SUITE 2920 CITY: HOUSTON STATE: TX ZIP: 77002 FORMER COMPANY: FORMER CONFORMED NAME: FRONTIER NATURAL GAS CORP DATE OF NAME CHANGE: 19931006 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: SANTOS AMERICAS & EUROPE CORP CENTRAL INDEX KEY: 0001169371 IRS NUMBER: 760383212 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC TO-T/A BUSINESS ADDRESS: STREET 1: 10111 RICHMOND AVE STREET 2: SUITE 500 CITY: HOUSTON STATE: TX ZIP: 77042 BUSINESS PHONE: 7139861700 MAIL ADDRESS: STREET 1: 10111 RICHMOND AVE STREET 2: SUITE 500 CITY: HOUSTON STATE: TX ZIP: 77042 SC TO-T/A 1 h95090a1scto-ta.txt SANTOS AMERICAS & EUROPE F/ESENJAY EXPLORATION INC SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 AMENDMENT NO. 1 TO SCHEDULE TO TENDER OFFER STATEMENT under Section 14(d)(1) or 13(e)(1) of the Securities Exchange Act of 1934 ESENJAY EXPLORATION, INC. (Name of Subject Company (issuer)) ECM ACQUISITION COMPANY SANTOS AMERICAS AND EUROPE CORPORATION SANTOS INTERNATIONAL HOLDINGS PTY LTD (Names of Filing Persons (offerors)) COMMON STOCK, PAR VALUE $.01 PER SHARE (Title of Class of Securities) 296426109 (CUSIP Number of Class of Securities) Kathleen A. Hogenson Santos Americas and Europe Corporation 10111 Richmond Ave., Suite 500 Houston, Texas 77042 (713) 986-1700 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Filing Persons) Copy to: James L. Leader 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** ---------------------- ---------------------- $63,450,297.36 $5,837.43
- ---------- * For purposes of calculating amount of filing fee only. Based on the offer to purchase 22,341,654 shares of common stock, par value $.01 per share, of Esenjay Exploration, Inc. at a purchase price of $2.84 per share net to the seller in cash, without interest. This number of shares represents the sum of (1) 19,121,568 total shares outstanding as of March 1, 2002, and (2) 3,220,086 shares reserved for issuance on the exercise of outstanding options and warrants as of March 1, 2002. ** The amount of the filing fee equals $92 per $1 million of the value of the transaction. [X] Check the box if any part of the fee is offset as provided by Rule 0-11(a)(2). Amount Previously Paid: $5,132.11 Schedule: TO-T Filing Parties: ECM Acquisition Company and Santos Americas and Europe Corporation Date Filed: March 26, 2002 [ ] 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 ECM Acquisition Company, a Delaware corporation (the "Purchaser"), Santos Americas and Europe Corporation, a Delaware corporation ("Santos") and Santos International Holdings Pty Ltd ("Santos International"), hereby amend and supplement the Tender Offer Statement on Schedule TO originally filed by the Purchaser and Santos with the Securities and Exchange Commission on March 26, 2002 (as so amended and supplemented, the "Schedule TO"). The Schedule TO relates to the offer by the Purchaser to purchase all outstanding shares of common stock, par value $.01 per share, of Esenjay Exploration, Inc., at a purchase price of $2.84 per share, net to the seller in cash, without interest thereon, on the terms and subject to the conditions set forth in the Offer to Purchase dated March 26, 2002, and the related letter of transmittal. This Amendment No. 1 to Schedule TO is being filed on behalf of the Purchaser, Santos and Santos International. Capitalized terms this amendment uses, but does not define have the meanings the Offer to Purchase specifies. ITEM 4. TERMS OF THE TRANSACTION. Item 4 is hereby amended and supplemented by amending and restating the penultimate sentence in the first paragraph of Section 4 entitled "Acceptance for Payment and Payment" to read in its entirety as follows: "We expressly reserve the right, in our sole discretion, to delay acceptance for payment of or payment for shares in order to comply with any required governmental regulatory approvals." Item 4 is hereby further amended and supplemented by amending and restating the introductory clause to the second paragraph, immediately preceding condition (a), of Section 14 entitled "Conditions to the Offer" to read in its entirety as follows: "Moreover, notwithstanding any other term of the offer or the acquisition agreement, we will not be required to accept for payment or, subject as aforesaid, pay for any shares we have not already accepted for payment or paid for, and may terminate or amend the offer, with or without the consent of Esenjay as the acquisition agreement provides, if, at any time on or after the date of the acquisition agreement and before the expiration date, any of the following conditions exists:" Item 4 is hereby further amended and supplemented by amending and restating condition (h) in Section 14 entitled "Conditions to the Offer" to read in its entirety as follows: "Santos shall not have received environmental site assessment reports from each of (1) Cornerstone Environmental Services, Inc., covering twelve of Esenjay's operating wells and (2) Anderson Environmental Services, Inc., covering Esenjay's remaining operating wells, in each case in form and substance reasonably satisfactory to Santos." Item 4 is hereby further amended and supplemented by amending and restating the final clause to the second paragraph, immediately following condition (j), of Section 14 entitled "Conditions to the Offer" to read in its entirety as follows: "in each case which, and regardless of the circumstances giving rise to any such condition, makes it inadvisable, in the good-faith judgment of Santos, to proceed with such acceptance for payment or payment." Item 4 is hereby further amended and supplemented by amending and restating the second sentence of the last paragraph of Section 14 entitled "Conditions to the Offer" to read in its entirety as follows: "Santos or we may assert any of those conditions regardless of the circumstances giving rise thereto or may waive any of those conditions in whole or in part at any time and from time to time in our sole discretion prior to the expiration date; provided, however, that while the acquisition agreement remains in effect, the Minimum Tender Condition may not be waived without the prior written consent of Esenjay." 3 ITEM 5. PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS. Item 5 is hereby amended and supplemented by amending and restating the twenty-seventh paragraph of Section 11 entitled "Contacts and Transactions With Esenjay; Background of the Offer" to read in its entirety as follows: "On February 26, 2002, Ms. Hogenson delivered a written proposal to Mr. Johnson in response to his request. The proposal provided that Santos USA would pay $2.86 per share in cash to purchase all of Esenjay's common stock, based on an enterprise value of $80 million less certain adjustments totaling $18.16 million derived from assumptions relating to Esenjay's balance sheet and other liabilities as of December 31, 2001 (giving an implied equity value of $61.84 million for 21.62 million shares on a fully diluted basis), and subject to, among other conditions, adjustments for further due diligence, the negotiation and execution of a mutually acceptable definitive merger agreement and approval of that agreement by the parties' boards of directors. The offer price remained subject to a positive or negative variance based on Santos USA's finalization of a comprehensive review of Esenjay's financial condition." Item 5 is hereby further amended and supplemented by amending and restating the twenty-ninth paragraph of Section 11 entitled "Contacts and Transactions With Esenjay; Background of the Offer" to read in its entirety as follows: "On March 5, 2002, Ms. Hogenson contacted Mr. Johnson to inform him of Santos USA's revised proposal following Santos USA's additional due diligence. As a result of that due diligence, Santos USA ascertained various positive and negative variances in Esenjay's financial condition which, when combined, resulted in a net negative variance of approximately $400,000. After negotiation, the parties agreed to reduce the initial offer price by $0.02 per share (i.e., a revised offer price of $2.84). This revised offer price was conditioned upon the execution of a stockholders agreement and option agreement with certain stockholders, directors and officers of Esenjay." ITEM 11. ADDITIONAL INFORMATION. Item 11 is hereby amended and supplemented by amending and restating of the first paragraph of the subsection "Appraisal Rights" under Section 12 entitled "Purpose of the Offer; The Transaction Agreements; Plans For Esenjay" to read in its entirety as follows: "The holders of shares will not have appraisal rights as a result of the offer. If the merger is consummated, however, certain holders of shares will have rights under Section 262 of the DGCL to demand appraisal of their shares. Because of the complexity of the procedures for exercising the right to seek appraisal of shares, stockholders who consider exercising such rights should seek the advice of counsel. Not less than 20 days prior to any meeting of the stockholders to act on the merger, Esenjay will notify each record holder of shares entitled to appraisal rights that such appraisal rights are available and include in such notice a copy of Section 262 of the DGCL. Generally, any such holder who o delivers to Esenjay a written demand for appraisal of its shares before the vote on the merger, o does not vote its shares in favor of the merger, o continuously holds such shares from the date of making the demand through the effective time of the merger, and o otherwise complies with the applicable statutory procedures and requirements, will be entitled to receive a judicial determination of the fair value of their shares (excluding 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 judicial determination of the fair value of 4 shares could be based on factors other than, or in addition to, the price per share to be paid in the merger or the market value of the shares. The value determined in this manner could be more or less than the price per share to be paid in the merger. If the merger is consummated by a "short-form" merger procedure without a meeting of the stockholders, the notices will be delivered no later than 10 days after the effective time of the merger, and holders of shares entitled to appraisal rights who comply with the above requirements may demand appraisal of their shares in writing from Esenjay at any time within 20 days after the date the notices are mailed." 5 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: April 15, 2002 ECM ACQUISITION COMPANY By: /s/ Kathleen A. Hogenson ------------------------------------------ Kathleen A. Hogenson President SANTOS AMERICAS AND EUROPE CORPORATION By: /s/ Kathleen A. Hogenson ------------------------------------------ Kathleen A. Hogenson President SANTOS INTERNATIONAL HOLDINGS PTY LTD By: /s/ Michael George Roberts ------------------------------------------ Michael George Roberts Director and Company Secretary 6 INDEX TO EXHIBITS
EXHIBIT NUMBER DESCRIPTION - ------- ----------- *(a)(1)(A) Offer to Purchase, dated March 26, 2002 *(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 on Substitute Form W-9 *(a)(1)(G) Press release issued by Santos Ltd on March 18, 2002 *(a)(1)(H) Summary Advertisement, published March 26, 2002 (b) None *(d)(1) Agreement dated March 17, 2002 by and among Santos Americas and Europe Corporation, ECM Acquisition Company and Esenjay Exploration, Inc. *(d)(2) Stockholders Agreement dated March 17, 2002 by and between the Tendering Stockholders and Santos Americas and Europe Corporation *(d)(3) Option Agreement dated March 17, 2002 by and between the stockholders signatory thereto and Santos Americas and Europe Corporation (g) None (h) None
- ---------- * Previously filed. 7 -----END PRIVACY-ENHANCED MESSAGE-----