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1
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PLAINTIFFS BRIEF IN SUPPORT OF THE SETTLEMENT
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EXTRACTED KEY WORDS
CONTOUR COURT RECLASSIFICATION SUMMARY JUDGMENT ORDER SETTLEMENT ANNUAL MEETING SUMMARY JUDGMENT DIRECTORS ATTORNEYS DEL CHANCERY RULING STOCKHOLDERS DELAWARE REVERSE STOCK SPLIT CERTIFICATE FEES DEFENDANTS PLAINTIFFS COUNSEL LITIGATION PREFERRED HOLDERS SHAREHOLDERS LITIG MICHAEL HANRAHAN CHANCERY COURT RULES REPRESENTATION CONSENT SOLICITATION CLASS ACTION PURSUANT DESIGNATIONS WILMINGTON |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
WESTERN FINANCIAL CO.,
Plaintiff, C.A. No. 17879 NC
V.
CONTOUR ENERGY CO.
Defendant.
PLAINTIFF'S BRIEF IN SUPPORT OF THE SETTLEMENT
PRICKETT, JONES & ELLIOTT,
Michael Hanrahan
Elizabeth M. McGeever
Sheldon K. Rennie
1310 King Street
Wilmington, DE 19801
(302) 888-6500
Attorneys for Plaintiff
Dated: August 2, 2000
17302.1\119-468vl
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2
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AMENDED AND SUPPLEMENTED COMPLAINT
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EXTRACTED KEY WORDS
CONTOUR DIRECTORS HOLDERS ELECT CERTIFICATE DESIGNATION DEFENDANT PLAINTIFF COMMON STOCK SHARES DIVIDENDS ANNUAL MEETING PERMIT STOCKHOLDERS RECLASSIFICATION DIRECTORSHIPS UNPAID DIVIDENDS REGISTRATION STATEMENT OUTSTANDING APPROXIMATES AMENDMENT SPECIAL MEETING REVERSE STOCK SPLIT CPC PRESIDENT GENERAL PARTNER CONTOUR ENERGY OBLIGATION QUARTERLY DIVIDENDS |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWAR:E
IN AND FOR NEW CASTLE COUNTY
WESTERN FINANCIAL CO., :
Plaintiff,
v. Civil Action No. 17879 NC
CONTOUR ENERGY CO., John F. I .-.,
BOOKOUT, JOHN J. CONKLIN, JR., :
RALPH P . DAVIDSON, ADAM P. :
GODFREY, WILLIAM J. MURRAY, i:
EDWARD PARK, WARD W. WOODS 1 ^,
AND CONTOUR PRODUCTION : .-.
COMPANY, L.L.C., _CL'
Defendants.
AMENDED) AND SUPPLEMENTED COMPLAINT
____- ~-
Nature of the Action
1. Plaintiff Western Financial Co., a holder of $2.625 Convertible
Exchangeable Preferred Stock (the "Preferred Stock" or the Series") of defendant
Contour Energy CO., a Delaware corporation ("Contour" or the "Cornpan;,-"); brings
this action individually and as a class a&ion to enforce the right,s of the Preferred
Stock under the Certificate of Designation of the Preferred Stock (the "Certificate of
Designation"). Plaintiff seeks specific performance of Section 9(a) of the Certificate
of Designation by an order directing that Contour must create two new
directorships and permit the holders of the Preferred Stock to nominate and elect
two directors to the Contour board of directors at the 2000 annual meeting of
Cont,our stockholders to blz held in May, 2000 or at a special meeting of holders of
the Preferred Stock promptly called and noticed by Contour for that purpose.
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3
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PLAINTIFFS RESPONSE TO MOTION TO DISMISS COUNT II
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EXTRACTED KEY WORDS
CERTIFICATE COMMON SHARES REVERSE STOCK COURT REVERSE STOCK SPLIT MOTION PLAINTIFF PURCHASE DIVIDENDS RELIEF DISMISS MOOT DESIGNATION PAID PAYMENT AMOUNTS FRACTIONAL SHARES PREFERRED HOLDERS AMENDMENT DEFENDANTS ARREARS PARTIES CASH CANTOR FITZGERALD SETTLEMENTS COUNSEL PAY CONTROVERSY RENDER |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
WESTE.RN FINANCIAL CO.,
PI.aintiff, C.A. No. 17879 NC
i
V.
i
CONTOURENERGY CO.
t
Defendant. 3
PLAINTIFF'S RESPONSE TO CONTOUR'S
MOTION TO DISMISS COUNT II AS MOOT
Plaintiff responds to the motion to dismiss Count II of the Complaint filed by
defendant Contour Energy Co. ("Contour" or the "Company") on May 25, 2000.
1. Count II of the Complaint asserts that Contour breached $53(b) and (d)
of the Certificate of Designation for Contour's outstanding Preferred Stock which
forbid Contour frorn purchasing or otherwise acquiring, or making any payment or
creating any fund for the purchase of, any Contour Common Shares unless all
Preferred dividends are paid first. Contour purchased Common Sha.res in
connection with a purported reverse stock split of Contour's Common Stock effected
in July, 1999 (the "Reverse Stock Split"), even though there were 6 dividends in
arrears due on the Preferred
2. :By Stjpulation and Order entered on May 16, 2000, it was agreed that
the parties would present the issue of whether Contour had violated the Certificate
of Designations in connection with the Reverse Stock Split to the Court on cross-
motions for summary judgment. After those cross-motions were sub judice, Contour
17'30'?1\115718v1
I.2 1
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4
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PLAINTIFFS RESPONSE TO APPLICATION FOR CERTIFICATION OF INTERLOCUTORY APPEAL
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EXTRACTED KEY WORDS
INTERLOCUTORY APPEALS CERTIFICATION PLAINTIFF CITE SUPREME COURT DEL CONTOUR SUPR SUMMARY JUDGMENT EQUITABLE RELIEF COURT RULE EXHIBIT BREACH DIRECTORS HEREBY VEASEY DEFENDANTS APPELLATE CONTRACT SUPPORT REVIEW JUSTICE FASHIONING PARTIES DELAWARE MOTIONS ELECTION QUALITY FUND |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
WESTERN FINANCIAL CC).,
f
Plaintiff, C A. No. 17879 NC
t
V.
t
CONTOUR. ENERGY CO.
z
Defendant.
PLAINTIFF'S RESPONSE TO DEFENDANT'S APPLICATION
FOR CERTIFICATION OF INTERLOCUTORY APPEAL
Pursuant to Supreme Court Rule 42(c)(ii), plaintiff hereby opposes
defendant's application for certification of an interlocutory appeal of this Court's
May 19, 2000 ruling and the order entered thereon. Certification is inappropriate
for the following reasons:
1. Interlocutory appeals are accepted only in exceptional circumstances.
Safetv Naticinal Casualty Co. v. Witco, Del. Supr., No. 91, 2000 (April 13, 2000)
(Exhibit .A). Under Rule 42, the threshold question is whether the trial court
determined a "substantial issue" in this case. The Supreme Court has explained
that the "substantial issue" requirement means t.hat:
[glenerally speaking, the substantive element of the
appealability of an interlocutory order must relate to the
merits of the case.. . This is essential to the limitations of
appeals and the avoidance of fragmentation of cases
necessary to tbe efficient operation of our system.
Castaldo v.Jittsburgh-Des-\Ioines Steel Co., Del. Supr., 301 A.Zd 87, 88 (1973).
Here, the Court has not even addressed the merits of most of plaintiffs claims. The
Court granted partial summary judgment on just one of the two issues before it.
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5
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SUMMARY JUDGMENT ON COUNT 1 OF THE COMPLAINT
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EXTRACTED KEY WORDS
HOLDERS RECAPITALIZATION VOTE PROXY SOLICITATION CONSENTS PROXY STATEMENT HEREOF SUMMARY JUDGMENT DIRECTORS NOMINEES PLAINTIFF NOMINATION REMOTE MAILING COURT COMPLAINT STOCKHOLDERS RULING SECURITIES VERIFY SERVE PROXIES CONTOUR INTER ALIA STOCK PARTIES CROSS-MOTIONS ACT |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
WESTERN FINANCIAL CO., 9
Plaintiff, t C.A. No. 17879 NC
V. i
CONTOUR ENERGY CO. : I
ii . _
.Defendant. § . ._
SUMMARY J'UD~GMENT ON COUNT I OF THE COMPLAINT
WHEREAS, by ljtipulation and Order entered on May 16, 2000 (the "May 16
Order"), defendant Contour Energy Co. ("Contour" or the "Company") stipu.lated,
inter alia, that on or before June 26, 2000 it would hold the Compa.ny's 2000 annual
meeting of stockholders, including the election of two directors by the holders of
Contour's Preferred Stock (the "Election");
WHEREAS, the parties stipulated to cross move for summary judgmen-t as to
whether the Compan:y h.ad any obligation to the holders of the Preferred. wit,h
respect to the Election other than the actions provided for in the May 16 Order;
WHEREAS, the Company has determined to propose to the Preferred a
recapitalization (the "Recapitalization") of the Company which must be approved by
the vote of 66-213 perce.nt of the outstanding Preferred, and to solicit written
consents to the Recapitalization, the effect of which, if consented to, would be to
eliminate the Preferre'd in return for $3.50 in cash and one share of common stock of
the Company for each share of Preferred;
WHEREAS, the pa.rties filed the cross-motions for summary judgment as
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6
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PLAINTIFFS REPLY BRIEF ON SUMMARY JUDMENT
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EXTRACTED KEY WORDS
SHARES DELAWARE COMMON SHARES STOCK COURT PLAINTIFFS CERTIFICATE PURCHASE AMENDMENT STOCKHOLDERS SUMMARY JUDGMENT DEL DIRECTORS ANNUAL MEETING HOLDERS DIVIDENDS FRACTIONAL SHARES BREACHES REVERSE STOCK SPLIT ACQUISITION CORPORATION LAW KING STREET WILMINGTON AUTHORITIES DESIGNATION NOMINEES PROVISION ELECTION ATTORNEYS |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
WESTERN FINANCIAL CO.,
Plaintiff, C.A. No. 17879 NC
V .
CONTOUR ENERGY CO. t
Defendant.
PLAIN'I'IFF'S REPLY BRIEF ON SUMMARY JUDGMENT
PRICKETT, JONES & ELLI:OTT,
Michael Hanrahan
Elizabeth M. McGeever
1310 King Street
Wilmington, DE 19801
(302) 888-6500
Attorneys for Plaintiff
Dated: May 15, 2000
TABLE OF CONTENTS
TABLIE OF AUTHORITIES . . . . . . . . . . . . . . . . .._............. . . . . . . . . . . . . . .
......... i
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7
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DEFENDANTS BRIEF IN OPPOSITION TO PLAINTIFFS MOTION FOR SUMMARY JUDGMENT
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EXTRACTED KEY WORDS
CERTIFICATE COMMON CASH ELECTION LIEU CHARTER REVERSE COMMON REVERSE COMMON SPLIT PROVISION COURT FACTS PERTINENT PROXY SOLICITATION AMENDMENT PREFERRED STOCKHOLDER DELAWARE PLAINTIFF SUMMARY JUDGMENT DESIGNATION DIVIDENDS ANNUAL MEETING PREFERRED STOCK DIRECTORS DGCL SOLICIT PROXIES PREFERENCES DEFENDANT OUTSTANDING AMENDING CERTIFICATE LIKEWISE |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
WESTERN FINANCIAL CO., >
Plaintiff, i
V. :' C.A. No. 17879 NC
CONTOUR ENERGY CO., i
!L i
Defendant.
DEFENDANT'S BRIEF IN OPPOSITION TO PLAINTIFF'S
MOTION FOR SUMMARY JUDGMENT AND IN SUPPORT OF
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
MORRIS, NICHOLS, ARSHT & TUNNELL
Richard L. Sutton (#454)
Alan J. Stone (#2677)
1201 N. Market Street
P.O. Box 1347
Wilmington, DE 19899.. 1347
(302) 658-9200
Attorneys for Defendant
OF COUNSEL.:
Charles H. Still, Esquire
FULBRIGHT & JAWORSKI, LLP
1301 McKinney, Suite 5 100
Houston, TX 77010-3095
(713) 651-5151
May 8, `000
i.
TABLE OF CONTENTS
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8
.
ANSWER
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EXTRACTED KEY WORDS
DEFENDANT ALLEGATIONS COMPLAINT DEFENDANT DENIES DEFENDANT ADMITS COURT RESPECTFULLY REFERS RESPONSE CERTIFICATE DESIGNATION BYLAWS CONTOUR REVERSE STOCK SPLIT MEETING DEFENDANT REPEATS INCORPORATES REFERENCE AFFIRMATIVE DEFENSE DELAWARE HEREBY LANGUAGE PLAINTIFF DEFENDANT LACKS INFORMATION LACKS INFORMATION SUFFICIENT DOCUMENTS RELATING EXCHANGE PERIODS ENDING DELAWARE GENERAL CORPORATION LAW |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
WESTERN FINANCIAL CO., ::
Plaintiff, : 2
: -j 17
r: ^I
V . : C. A. No.17879-NC j "- -j.1 '*
: 'i j
CONTOUR ENERGY CO., : .) 'S
i
: --
Defendant. : .- .'
ANSWER 7'
-. .--
-. I
Defendant, Contour Energy Co., ("Contour" or the
"Company") for its Answer hereby responds to the Complaint as
follows:
1. The first three sentences of paragraph 1 do not
contain allegations of fiact and therefore require no response.
Defendants deny the fourth and fifth sentences of paragraph 1 of
the Complaint.
2. Defendant lacks information sufficient to form a
belief as to the allegations of paragraph 2.
3. Defendant admits the allegations of paragraph 3,
except for the allegation in the fourth sentence of paragraph 3,
that the reverse stock split effected on July 30, 1999 is "as
described below."
4. Defendant admits the allegations of paragraph 4
of the Complaint and for a further answer, respectfully refers
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9
.
COMPLAINT
|
EXTRACTED KEY WORDS
DIRECTORS CONTOUR HOLDERS ANNUAL MEETING ELECT STOCKHOLDERS CERTIFICATE DESIGNATION PLAINTIFF RIGHTS SHARES DIVIDENDS SPECIAL MEETING DIRECTORSHIPS COMMON STOCK DEFENDANT UNPAID DIVIDENDS OUTSTANDING AMENDMENT REVERSE STOCK SPLIT CONTOUR ENERGY OBLIGATION QUARTERLY DIVIDENDS PROVISIONS WRITTEN CONSENT PRESIDENT PREFERENCES ACCORDING VIOLATION |
"-WC /-
I
IN THE COURT OF CHANCERY OF THE STAT.E OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
WESTERN FINANCIAL CO., :
Pla:intiff,
V. Civil Action No.
CONTOUR ENE:RGY CO.,
Defendant.
COMPLAINT
Nature of the Action
1. Plaintiff Western Financial Co., a holder of $2.625 Convertible
Exchangeable Preferred Stock (the "Preferred Stock" or the Series") of defendant
Contour Energy Co., a Delaware corporation ("Contour" or the "Company"), brings
this action individually and as a class action to enforce the rights of the Preferred
Stock under the Certificate of Designation of the Preferred Stock (the "Certificate of
Designation"). Plaintiff seeks specific performance of Section 9(a) of the Certificate
of Designation by an order directing that Contour must create two new
directorships and permit the holders of the Preferred Stock to nominate and elect
two directors to the Contour board of directors at the 2000 annual meeting of
Contour stockholders to be held in May, 2000 or at a special meeting of holders of
the Preferred Stock promptly called and noticed by Contour for that purpose.
Plaintiff also seeks to enforce Sections 3(b) and 3(d) of the Certificate of Designation
which require that the Company declare and pay all unpaid dividends on the
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