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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Schedule TO/A
Tender Offer Statement under Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
(Amendment No. 3)
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TOM BROWN, INC.
(Name of Subject Company)
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PLAZA ACQUISITION II CORP.
and
ENCANA CORPORATION
(Name of Filing Persons (Offeror))
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COMMON STOCK, PAR VALUE $.10 PER SHARE
(Title of Class of Securities)
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115660201
(CUSIP Number of Class of Securities)
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KERRY D. DYTE
CORPORATE SECRETARY
ENCANA CORPORATION
1800, 855-2ND STREET S.W.
CALGARY, ALBERTA
CANADA T2P 2S5
(403) 645-2000
(Name, address and telephone number of person authorized to
receive notices and communications on behalf of filing person)
COPIES TO:
EDWIN S. MAYNARD, ESQ. PATRICK C. FINNERTY, ESQ.
ROBERT B. SCHUMER, ESQ. BLAKE, CASSELS & GRAYDON LLP
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 3500 BANKERS HALL EAST
1285 AVENUE OF THE AMERICAS 855 SECOND STREET SW
NEW YORK, NEW YORK 10019-6064 CALGARY, ALBERTA, CANADA, T2P 4J8
(212) 373-3000 (403) 260-9600
CALCULATION OF FILING FEE
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TRANSACTION VALUATION* AMOUNT OF FILING FEE**
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$2,334,790,189.30 $295,817.92
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* Estimated for purposes of calculating the amount of the filing fee only.
The fee was calculated by multiplying $48.00, the per share tender offer
price, by the 46,141,755 currently outstanding shares of Common Stock
sought in the Offer, which gives an aggregate consideration of
$2,214,804,240 (the "Common Stock Consideration"). The Common Stock
Consideration was then added to $119,985,949.30, being the net
consideration for the Subject Company's 4,774,610 stock options, to arrive
at a total transaction value of $2,334,790,189.30.
** Calculated as 0.012670% of the transaction value.
[X] Check the box if any part of the fee is offset as provided by Rule
0-11(a)(2) and identify the filing with which the offsetting fee was
previously paid. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
Amount Previously Paid: $295,817.92 Filing Party: EnCana Corporation
Form or Registration No.: Schedule TO Date Filed: April 21, 2004
[_] Check the box if the filing relates solely to preliminary
communications made before the commencement of a tender offer. Check
the appropriate boxes 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: [_]
This Amendment No. 3 (the "Amendment") amends and supplements the
Tender Offer Statement on Schedule TO (the "Schedule TO") filed on April 21,
2004, as amended on April 28, 2004 and May 6, 2004, by Plaza Acquisition II
Corp., a Delaware corporation ("Purchaser"), and EnCana Corporation, a Canadian
corporation ("Parent"). The Schedule TO relates to the Offer by Purchaser to
purchase all outstanding shares of Common Stock, par value $.10 per share (the
"Common Shares"), of Tom Brown, Inc., a Delaware corporation (the "Company"),
including the associated rights (the "Rights") to purchase shares of preferred
stock of the Company pursuant to the First Amended and Restated Rights
Agreement, dated March 1, 2001, as amended, between the Company and EquiServe
Trust Company, N.A., as rights agent (the Common Shares, together with the
Rights, the "Shares"), at a purchase price of $48.00 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 April 21, 2004 (the "Offer
to Purchase"), and in the related Letter of Transmittal, copies of which are
attached to the Schedule TO as Exhibits (a)(1)(A) and (a)(1)(B) (which, together
with any amendments or supplements thereto, collectively constitute the
"Offer"). Capitalized terms used and not otherwise defined herein shall have the
meanings ascribed to such terms in the Offer to Purchase.
ITEM 7. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Item 7 of the Schedule TO is hereby amended and supplemented by the
following:
"EnCana Holdings Finance Corp., an indirect wholly owned subsidiary of
Parent, has priced a public offering of notes. The offering is expected to close
on May 13, 2004. Purchaser currently intends to use the net proceeds of the
offering to fund a portion of the Offer, in which case Parent expects to reduce
the amount of the Facility by a like amount."
ITEM 11. ADDITIONAL INFORMATION.
Item 11 of the Schedule TO is hereby amended and supplemented by the
following:
"The waiting period under the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended (the "HSR Act"), expired at 11:59 p.m. on May 7, 2004
and, thus, all necessary waiting periods under the HSR Act have expired. Parent
issued a press release announcing the foregoing, which is attached hereto as
Exhibit (a)(5)(E) and is incorporated herein by reference."
ITEM 12. MATERIAL TO BE FILED AS EXHIBITS.
Item 12 of the Schedule TO is hereby amended and supplemented to
include the following:
"(a)(5)(E) Press Release issued by Parent on May 10, 2004."
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SIGNATURES
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.
ENCANA CORPORATION
By: /s/ Kerry D. Dyte
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Name: Kerry D. Dyte
Title: Corporate Secretary
PLAZA ACQUISITION II CORP.
By: /s/ Roger J. Biemans
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Name: Roger J. Biemans
Title: President
Dated: May 10, 2004
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EXHIBIT INDEX
EXHIBIT
NO.
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(a)(1)(A) Offer to Purchase dated April 21, 2004. (1)
(a)(1)(B) Amended and Restated Form of Letter of Transmittal. (2)
(a)(1)(C) Form of Notice of Guaranteed Delivery. (1)
(a)(1)(D) Form of Letter from Purchaser to Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees. (1)
(a)(1)(E) Form of Letter from Brokers, Dealers, Commercial Banks, Trust
Companies and Nominees to Clients. (1)
(a)(1)(F) Form of Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9. (1)
(a)(5)(A) Summary Advertisement as published in The Wall Street Journal on
April 21, 2004. (1)
(a)(5)(B) Press Release issued by Parent on April 15, 2004. (3)
(a)(5)(C) Parent Employee Communications of April 15, 2004 and April 19, 2004.
(1)
(a)(5)(D) Press Release issued by Parent on April 28, 2004. (4)
(a)(5)(E) Press Release issued by Parent on May 10, 2004.
(b) Bank Commitment Letter from Royal Bank of Canada to Parent, dated
April 12, 2004. (1)
(d)(1) Agreement and Plan of Merger, dated as of April 14, 2004, by and
among Parent, Purchaser, and the Company. (5)
(d)(2) Confidentiality Agreement, dated as of November 25, 2003, by and
between the Company and EnCana Oil & Gas (USA) Inc., a Delaware
corporation and an indirect wholly owned subsidiary of Parent. (1)
(g) None.
(h) None.
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1 Incorporated by reference to the Schedule TO filed by Purchaser and Parent
on April 21, 2004.
2 Incorporated by reference to Schedule TO/A of Purchaser and Parent filed on
May 6, 2004.
3 Incorporated by reference to Exhibit 99.1 to the Schedule TO-C of Purchaser
and Parent filed on April 15, 2004.
4 Incorporated by reference to Schedule TO/A of Purchaser and Parent filed on
April 28, 2004.
5 Incorporated by reference to Exhibit 99.2 to the Form 6-K of Parent filed
on April 19, 2004.
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