-----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, JfmmVEmjmheVxPhfN/pxXFNBvLcNpPNFaZ9PlCLF4QlKwZMY6tCjvzF81cD74Z9N 7wCvmXn59Lp9COZL35c+tw== 0000950129-95-001637.txt : 19951227 0000950129-95-001637.hdr.sgml : 19951227 ACCESSION NUMBER: 0000950129-95-001637 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19951226 SROS: NYSE SROS: PSE SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: TESORO PETROLEUM CORP /NEW/ CENTRAL INDEX KEY: 0000050104 STANDARD INDUSTRIAL CLASSIFICATION: PETROLEUM REFINING [2911] IRS NUMBER: 950862768 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-32167 FILM NUMBER: 95604411 BUSINESS ADDRESS: STREET 1: 8700 TESORO DR CITY: SAN ANTONIO STATE: TX ZIP: 78217 BUSINESS PHONE: 2108288484 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: COMMITTEE FOR NEW MANAGEMENT OF TESORO PETROLEUM CORP CENTRAL INDEX KEY: 0001005233 STANDARD INDUSTRIAL CLASSIFICATION: [] FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: C/O BAKER & BOTTS LLP STREET 2: 885 THIRD AVE CITY: NEW YORK STATE: NY ZIP: 10022-4834 BUSINESS PHONE: 2127055028 MAIL ADDRESS: STREET 1: C/O BAKER & BOTTS LLP STREET 2: 885 THIRD AVENUE CITY: NEW YORK STATE: NY ZIP: 10022-4834 SC 13D 1 TESORO PETROLEUM CORPORATION - SC 13D 1 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934* TESORO PETROLEUM CORPORATION ________________________________________________________________________________ (Name of Issuer) Common Stock, par value $0.16 2/3 per share ________________________________________________________________________________ (Title of Class of Securities) 0008816091 ________________________________________________________________________________ (CUSIP Number) John M. Huggins, Esq. Baker & Botts, L.L.P. 885 Third Avenue, Suite 1900 New York, New York 10022 (212) 705-5000 ________________________________________________________________________________ (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) December 14, 1995 ________________________________________________________________________________ (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ]. Check the following box if a fee is being paid with this statement [X]. (A fee is not required only if the reporting person: (1) has a previous statement on file reporting beneficial ownership of more than five percent of the class of securities described in Item 1; and (2) has filed no amendment subsequent thereto reporting beneficial ownership of less than five percent of such class. See Rule 13d-7.) Note: Six copies of this statement, including all exhibits, should be filed with the Commission. See Rule 13d-1(a) for other parties to whom copies are to be sent. *The remainder of this cover page should be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). NOTE: THIS STATEMENT CONSTITUTES AN ORIGINAL REPORT ON SCHEDULE 13D OF EACH OF THE REPORTING PERSONS (AS DEFINED IN THE SCHEDULE 13D). 2 CUSIP No. 0008816091 ________________________________________________________________________________ (1) Names of Reporting Persons S.S. or I.R.S. Identification Nos. of Above Persons Kevin S. Flannery ________________________________________________________________________________ (2) Check the Appropriate Box if a Member of a Group (a) [X] (b) [ ] ________________________________________________________________________________ (3) SEC Use Only ________________________________________________________________________________ (4) Source of Funds PF, AF ________________________________________________________________________________ (5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ] ________________________________________________________________________________ (6) Citizenship or Place of Organization United States/Republic of Ireland ________________________________________________________________________________ Number of (7) Sole Voting Power 0 shares Shares Bene- ___________________________________________________________________ ficially (8) Shared Voting Power 366,972 shares Owned by ___________________________________________________________________ Each Report- (9) Sole Dispositive Power 0 shares ing Person ___________________________________________________________________ With (10) Shared Dispositive Power 366,972 shares ________________________________________________________________________________ (11) Aggregate Amount Beneficially Owned by Each Reporting Person 366,972 shares ________________________________________________________________________________ (12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares [X] See Item 5 ________________________________________________________________________________ (13) Percent of Class Represented by Amount in Row (11) 1.5 % ________________________________________________________________________________ (14) Type of Reporting Person (See Instructions) IN Page 2 of 31 pages 3 CUSIP No. 0008816091 ________________________________________________________________________________ (1) Names of Reporting Persons S.S. or I.R.S. Identification Nos. of Above Persons Whelan Management Corp. ________________________________________________________________________________ (2) Check the Appropriate Box if a Member of a Group (a) [X] (b) [ ] ________________________________________________________________________________ (3) SEC Use Only ________________________________________________________________________________ (4) Source of Funds WC, AF ________________________________________________________________________________ (5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ] ________________________________________________________________________________ (6) Citizenship or Place of Organization Delaware ________________________________________________________________________________ Number of (7) Sole Voting Power 0 shares Shares Bene- ___________________________________________________________________ ficially (8) Shared Voting Power 340,615 shares Owned by ___________________________________________________________________ Each Report- (9) Sole Dispositive Power 0 shares ing Person ___________________________________________________________________ With (10) Shared Dispositive Power 340,615 shares ________________________________________________________________________________ (11) Aggregate Amount Beneficially Owned by Each Reporting Person 340,615 shares ________________________________________________________________________________ (12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares [ ] ________________________________________________________________________________ (13) Percent of Class Represented by Amount in Row (11) 1.4 % ________________________________________________________________________________ (14) Type of Reporting Person (See Instructions) CO Page 3 of 31 pages 4 CUSIP No. 0008816091 ________________________________________________________________________________ (1) Names of Reporting Persons S.S. or I.R.S. Identification Nos. of Above Persons George F. Baker ________________________________________________________________________________ (2) Check the Appropriate Box if a Member of a Group (a) [X] (b) [ ] ________________________________________________________________________________ (3) SEC Use Only ________________________________________________________________________________ (4) Source of Funds PF ________________________________________________________________________________ (5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ] ________________________________________________________________________________ (6) Citizenship or Place of Organization United States ________________________________________________________________________________ Number of (7) Sole Voting Power 110,000 shares Shares Bene- ___________________________________________________________________ ficially (8) Shared Voting Power 0 shares Owned by ___________________________________________________________________ Each Report- (9) Sole Dispositive Power 110,000 shares ing Person ___________________________________________________________________ With (10) Shared Dispositive Power 0 shares ________________________________________________________________________________ (11) Aggregate Amount Beneficially Owned by Each Reporting Person 110,000 shares ________________________________________________________________________________ (12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares [ ] ________________________________________________________________________________ (13) Percent of Class Represented by Amount in Row (11) 0.4 % ________________________________________________________________________________ (14) Type of Reporting Person (See Instructions) IN Page 4 of 31 pages 5 CUSIP No. 0008816091 ________________________________________________________________________________ (1) Names of Reporting Persons S.S. or I.R.S. Identification Nos. of Above Persons Alan Kaufman ________________________________________________________________________________ (2) Check the Appropriate Box if a Member of a Group (a) [X] (b) [ ] ________________________________________________________________________________ (3) SEC Use Only ________________________________________________________________________________ (4) Source of Funds PF ________________________________________________________________________________ (5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ] ________________________________________________________________________________ (6) Citizenship or Place of Organization United States ________________________________________________________________________________ Number of (7) Sole Voting Power 581,500 shares Shares Bene- ___________________________________________________________________ ficially (8) Shared Voting Power 20,000 shares Owned by ___________________________________________________________________ Each Report- (9) Sole Dispositive Power 581,500 shares ing Person ___________________________________________________________________ With (10) Shared Dispositive Power 20,000 shares ________________________________________________________________________________ (11) Aggregate Amount Beneficially Owned by Each Reporting Person 601,500 shares ________________________________________________________________________________ (12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares [X] See Item 5 ________________________________________________________________________________ (13) Percent of Class Represented by Amount in Row (11) 2.4 % ________________________________________________________________________________ (14) Type of Reporting Person (See Instructions) IN Page 5 of 31 pages 6 CUSIP No. 0008816091 ________________________________________________________________________________ (1) Names of Reporting Persons S.S. or I.R.S. Identification Nos. of Above Persons Kaufman Children's Trust ________________________________________________________________________________ (2) Check the Appropriate Box if a Member of a Group (a) [X] (b) [ ] ________________________________________________________________________________ (3) SEC Use Only ________________________________________________________________________________ (4) Source of Funds WC, AF ________________________________________________________________________________ (5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ] ________________________________________________________________________________ (6) Citizenship or Place of Organization Indiana ________________________________________________________________________________ Number of (7) Sole Voting Power 0 shares Shares Bene- ___________________________________________________________________ ficially (8) Shared Voting Power 20,000 shares Owned by ___________________________________________________________________ Each Report- (9) Sole Dispositive Power 0 shares ing Person ___________________________________________________________________ With (10) Shared Dispositive Power 20,000 shares ________________________________________________________________________________ (11) Aggregate Amount Beneficially Owned by Each Reporting Person 20,000 shares ________________________________________________________________________________ (12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares [ ] ________________________________________________________________________________ (13) Percent of Class Represented by Amount in Row (11) 0.1 % ________________________________________________________________________________ (14) Type of Reporting Person (See Instructions) 00 Page 6 of 31 pages 7 CUSIP No. 0008816091 ________________________________________________________________________________ (1) Names of Reporting Persons S.S. or I.R.S. Identification Nos. of Above Persons James H. Stone ________________________________________________________________________________ (2) Check the Appropriate Box if a Member of a Group (a) [X] (b) [ ] ________________________________________________________________________________ (3) SEC Use Only ________________________________________________________________________________ (4) Source of Funds PF ________________________________________________________________________________ (5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ] ________________________________________________________________________________ (6) Citizenship or Place of Organization United States ________________________________________________________________________________ Number of (7) Sole Voting Power 156,000 shares Shares Bene- ___________________________________________________________________ ficially (8) Shared Voting Power 0 shares Owned by ___________________________________________________________________ Each Report- (9) Sole Dispositive Power 156,000 shares ing Person ___________________________________________________________________ With (10) Shared Dispositive Power 0 shares ________________________________________________________________________________ (11) Aggregate Amount Beneficially Owned by Each Reporting Person 156,000 shares ________________________________________________________________________________ (12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares [ ] ________________________________________________________________________________ (13) Percent of Class Represented by Amount in Row (11) 0.6 % ________________________________________________________________________________ (14) Type of Reporting Person (See Instructions) IN Page 7 of 31 pages 8 CUSIP No. 0008816091 ________________________________________________________________________________ (1) Names of Reporting Persons S.S. or I.R.S. Identification Nos. of Above Persons Robert S. Washburn ________________________________________________________________________________ (2) Check the Appropriate Box if a Member of a Group (a) [X] (b) [ ] ________________________________________________________________________________ (3) SEC Use Only ________________________________________________________________________________ (4) Source of Funds PF ________________________________________________________________________________ (5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ] ________________________________________________________________________________ (6) Citizenship or Place of Organization United States ________________________________________________________________________________ Number of (7) Sole Voting Power 0 shares Shares Bene- ___________________________________________________________________ ficially (8) Shared Voting Power 233,336 shares Owned by ___________________________________________________________________ Each Report- (9) Sole Dispositive Power 0 shares ing Person ___________________________________________________________________ With (10) Shared Dispositive Power 233,336 shares ________________________________________________________________________________ (11) Aggregate Amount Beneficially Owned by Each Reporting Person 233,336 shares ________________________________________________________________________________ (12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares [ ] ________________________________________________________________________________ (13) Percent of Class Represented by Amount in Row (11) 0.9 % ________________________________________________________________________________ (14) Type of Reporting Person (See Instructions) IN Page 8 of 31 pages 9 CUSIP No. 0008816091 ________________________________________________________________________________ (1) Names of Reporting Persons S.S. or I.R.S. Identification Nos. of Above Persons Robert S. and Suzanne P. Washburn Revocable Trust ________________________________________________________________________________ (2) Check the Appropriate Box if a Member of a Group (a) [X] (b) [ ] ________________________________________________________________________________ (3) SEC Use Only ________________________________________________________________________________ (4) Source of Funds WC, AF ________________________________________________________________________________ (5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ] ________________________________________________________________________________ (6) Citizenship or Place of Organization California ________________________________________________________________________________ Number of (7) Sole Voting Power 0 shares Shares Bene- ___________________________________________________________________ ficially (8) Shared Voting Power 39,545 shares Owned by ___________________________________________________________________ Each Report- (9) Sole Dispositive Power 0 shares ing Person ___________________________________________________________________ With (10) Shared Dispositive Power 39,545 shares ________________________________________________________________________________ (11) Aggregate Amount Beneficially Owned by Each Reporting Person 39,545 shares ________________________________________________________________________________ (12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares [ ] ________________________________________________________________________________ (13) Percent of Class Represented by Amount in Row (11) 0.2 % ________________________________________________________________________________ (14) Type of Reporting Person (See Instructions) 00 Page 9 of 31 pages 10 CUSIP No. 0008816091 ________________________________________________________________________________ (1) Names of Reporting Persons S.S. or I.R.S. Identification Nos. of Above Persons Robert S. Washburn, Trustee for the Robert S. Washburn Money Purchase, Pension and Profit Sharing Keogh Plan Trusts ________________________________________________________________________________ (2) Check the Appropriate Box if a Member of a Group (a) [X] (b) [ ] ________________________________________________________________________________ (3) SEC Use Only ________________________________________________________________________________ (4) Source of Funds WC, AF ________________________________________________________________________________ (5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ] ________________________________________________________________________________ (6) Citizenship or Place of Organization California ________________________________________________________________________________ Number of (7) Sole Voting Power 0 shares Shares Bene- ___________________________________________________________________ ficially (8) Shared Voting Power 193,791 shares Owned by ___________________________________________________________________ Each Report- (9) Sole Dispositive Power 0 shares ing Person ___________________________________________________________________ With (10) Shared Dispositive Power 193,791 shares ________________________________________________________________________________ (11) Aggregate Amount Beneficially Owned by Each Reporting Person 193,791 shares ________________________________________________________________________________ (12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares [ ] ________________________________________________________________________________ (13) Percent of Class Represented by Amount in Row (11) 0.8 % ________________________________________________________________________________ (14) Type of Reporting Person (See Instructions) 00 Page 10 of 10 pages 11 ITEM 1. SECURITY AND ISSUER The class of equity securities to which this statement relates is the common stock, par value $0.16 2/3 per share (the "Common Stock"), of Tesoro Petroleum Corporation, a Delaware corporation (the "Company"). The principal executive offices of the Company are located at 8700 Tesoro Drive, San Antonio, Texas 78217. ITEM 2. IDENTITY AND BACKGROUND (a) - (c), (f). This statement is being filed by (i) Kevin S. Flannery ("Flannery"), (ii) Whelan Management Corp., a Delaware corporation ("Whelan"), (iii) George F. Baker ("Baker"), (iv) Alan Kaufman ("Kaufman"), (v) Kaufman Children's Trust, a trust established under Indiana law ("Kaufman Trust"), (vi) Robert S. Washburn ("Washburn"), (vii) the Robert S. and Suzanne P. Washburn Revocable Trust, dated April 27, 1988, a trust established under California law ("Washburn Revocable Trust"), (viii) Robert S. Washburn, trustee for the Robert S. Washburn Money Purchase, Pension and Profit Sharing Keogh Plan Trusts, trusts established under California law (the "Washburn Trusts"), and (ix) James H. Stone ("Stone"). Flannery and Whelan are sometimes collectively referred to herein as the "Flannery Entities." Kaufman and the Kaufman Trust are sometimes collectively referred to herein as the "Kaufman Entities." Washburn, the Washburn Revocable Trust and the Washburn Trusts are sometimes collectively referred to herein as the "Washburn Entities." Flannery, Baker, Kaufman, Stone and Washburn are members of the Committee for New Management of Tesoro Petroleum Corporation (the "Committee"). The Flannery Entities, Baker, the Kaufman Entities, the Washburn Entities and Stone are sometimes collectively referred to herein as the "Reporting Persons." Flannery's principal occupation or employment is as President of Whelan and Whelan Securities, Inc. ("Whelan Securities"). Whelan is engaged in investment advisory services and Whelan Securities is engaged in broker-dealer services. Flannery owns 75% of the common stock of Whelan. The principal office of each of the Flannery Entities is P.O. Box 1970, 8 Holley Street, Lakeville, Connecticut 06039. Flannery is a citizen of the United States of America and the Republic of Ireland. Information with respect to each executive officer and director of Whelan (other than Flannery) is included in Schedule I to this Schedule 13D. Baker's principal occupation or employment is as President of Cambridge Capital Holdings, an investment advisory firm and a partner of Baker Nye, L.P., an investment partnership. Baker's principal office is at Baker Nye, L.P., 767 Fifth Avenue, Suite 2800, New York, New York 10153. Baker is a citizen of the United States of America. Kaufman's principal occupation is as a neurological surgeon. The Kaufman Trust is a trust established under Indiana law and is for the benefit of Kaufman's children. Kaufman is the sole trustee of the Kaufman Trust. The principal office of each of the Kaufman Entities is 5500 Hohman Avenue, Hammond, Indiana 46320. Kaufman is a citizen of the United States of America. Stone's principal occupation or employment is as Chairman of the Board of Stone Energy Corporation, an oil and gas production company. Stone's principal office is at Page 11 of 31 pages 12 Stone Energy Corporation, 909 Poydras Street, Suite 2650, New Orleans, Louisiana 70112. Stone is a citizen of the United States of America. Washburn is a private investor. The Washburn Revocable Trust is a trust under California law for the benefit of Washburn and his wife Suzanne P. Washburn. Washburn is a co-trustee of the Washburn Revocable Trust with Suzanne P. Washburn. Information with respect to Suzanne P. Washburn is included in Schedule I to this Schedule 13D. The Washburn Trusts are jointly administered pension and retirement trusts established under California law for the benefit of Washburn and his designated beneficiaries. Washburn is the sole trustee of the Washburn Trusts. The principal address of the Washburn Entities is in care of Whelan Management Corp., P.O. Box 1980, 8 Holley Street, Lakeville, Connecticut 06039. Washburn is a citizen of the United States of America. (d) and (e). During the last five years, no Reporting Person and no person listed on Schedule I has (i) been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. Each Reporting Person may be deemed to share with each other Reporting Person beneficial ownership of all securities of the Company ("Company Securities") held by the Reporting Persons and to constitute a "group" within the meaning of Rule 13d-5 promulgated under the Exchange Act with respect to the Common Stock. Except as specifically described in Item 5, each Reporting Person expressly disclaims beneficial ownership of the Company Securities held by any other Reporting Persons. Information contained herein with respect to each Reporting Person is given solely by such Reporting Person, and no other Reporting Person has responsibility for the accuracy or completeness of information supplied by such other Reporting Person. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION As of the date hereof, the Flannery Entities had acquired an aggregate of 366,972 shares (the "Shares") of Common Stock (including options to purchase an aggregate of 208,000 Shares) for a total consideration of approximately $935,278. Of those Shares, 140,615 Shares and options to purchase 200,000 Shares were acquired by Whelan for total consideration of approximately $861,690 and 18,357 Shares and options to purchase 8,000 Shares were acquired by the Sean Kenrick Flannery Trust, a trust for which Mr. Flannery serves as investment officer ("Flannery Trust"), for a total consideration of approximately $73,588. The source of the funds used by Whelan to acquire such Shares and options was working capital provided from the personal funds of Flannery. The source of funds used by the Flannery Trust to acquire such Shares and options was personal funds of members of the Flannery family. In addition Page Flannery, the wife of Flannery, has purchased 2,500 Shares for a total consideration of approximately $23,625 out of personal funds. Certain of the funds used by the Flannery Entities may represent the proceeds of margin loans granted by brokerage firms in the ordinary course of business. See Items 5 and 6. Page 12 of 31 pages 13 As of the date hereof, Baker had acquired 10,000 Shares and options to purchase 100,000 Shares for a total consideration of $119,000. The source of the funds used by Baker to acquire such Shares and options was personal funds. As of the date hereof, the Kaufman Entities had acquired an aggregate of 601,500 Shares for a total consideration of approximately $5,061,825. Of those Shares, 581,500 Shares were acquired by Kaufman for a total consideration of approximately $4,942,750 and 20,000 Shares were acquired by the Kaufman Trust for a total consideration of $119,075. The source of the funds used by Kaufman to acquire such Shares was personal funds. The source of funds used by the Kaufman Trust to acquire such Shares were personal funds of Dr. Kaufman. Certain of the funds used by the Kaufman entities may represent the proceeds of margin loans granted by brokerage firms in the ordinary course of business. In addition, Gloria Kaufman, Kaufman's wife, has purchased 10,500 Shares for an aggregate consideration of approximately $89,250. See Item 5. As of the date hereof, Stone had acquired 46,000 Shares and options to acquire 110,000 Shares for a total consideration of approximately $450,268. The source of the funds used by Stone to acquire such Shares and options was personal funds. Certain of the funds used by Stone may represent the proceeds of margin loans granted by brokerage firms in the ordinary course of business. As of the date hereof, the Washburn Entities had acquired an aggregate of 233,336 Shares for a total consideration of approximately $1,061,639. Of those Shares, 39,545 Shares were acquired by the Washburn Revocable Trust for a total consideration of $179,890 and 193,791 Shares were acquired by the Washburn Trusts for a total consideration of approximately $881,749. The source of funds used by the Washburn Revocable Trust to acquire such Shares was personal funds of Washburn and the source of funds used by the Washburn Trusts to acquire such Shares was through funds in the Washburn Trusts provided by Washburn through allowable contributions to the Washburn Trusts. ITEM 4. PURPOSE OF TRANSACTION Each of the Reporting Persons acquired its respective Shares and options to purchase Shares in order to obtain an equity position in the Company. As more fully explained below, the Reporting Persons plan to seek to acquire control of the Company through the replacement of the Company's current Board of Directors with the Committee Nominees. On December 14, 1995, certain of the Reporting Persons formed the Committee in order to take concerted action to enhance shareholder value of the Company. In the opinion of the Committee, the Shares are currently undervalued, and the Committee believes that the Board of Directors of the Company should be evaluating all alternatives available to the Company to maximize the value of the Company for all shareholders. The Committee believes, however, that the current Board of Directors and incumbent management have exhibited a sustained inability or unwillingness to take the actions necessary to enhance shareholder value. The Committee has determined to commence a consent solicitation to remove the existing members of the Board of Directors and replace them with a slate of nominees Page 13 of 31 pages 14 (the "Committee Nominees") consisting of Baker, Kaufman, Stone, Gale L. Galloway ("Galloway") and Douglas Thompson ("Thompson"). Galloway is the Chairman of the Board and Chief Executive Officer of GLG Energy, Inc., an independent oil and gas operator. Thompson is the Chairman of Digicon, Inc., a Delaware corporation based in Houston, Texas engaged in worldwide geophysical services. The Committee will shortly file preliminary solicitation materials with the Securities and Exchange Commission with respect to the removal of the existing Board, the election of the Committee Nominees and various related matters. Each Reporting Person intends to execute written consents supporting the actions proposed by the Committee. If elected, the Committee Nominees intend to conduct a detailed review of the Company and its assets, corporate structure, dividend policy, capitalization, operations, properties, policies and personnel. The Committee Nominees will consider alternative strategies to enhance stockholder value, including, among other things, changes in the Company's business policies and plans or corporate structure, along with sales of certain assets and operations. Based on the Committee's current knowledge of the Company, the Committee expects that the Committee Nominees, once elected, will adopt a strategic plan to enhance the value of the Company which will include as a principal element the prompt disposition of the Company's refinery business in order to enable the Company to focus on its core exploration and production business. On December 26, 1995, the members of the Committee intend to commence a lawsuit in the United States District Court for the Western District of Texas, San Antonio Division, against the Company and its Chief Executive, Bruce A. Smith. The action will seek, among other relief, a judgment (i) declaring that the Company's Rights Agreement dated December 16, 1985 (the Company's "poison pill") does not apply to the efforts of the Committee to solicit consents from other stockholders of the Company; (ii) declaring that the Company's By-laws permit removal of directors through stockholder action by written consent; (iii) enjoining the Company from delaying or otherwise unlawfully interfering with the efforts of the Committee to solicit consents from other stockholders; and (iv) declaring that the actions and disclosures of the Committee with regard to their effort to solicit consents are and have been in compliance with the Securities Exchange Act of 1934, as amended. A copy of the Committee's complaint, once the lawsuit has been commenced, will be filed as an exhibit to this Schedule 13D. The Reporting Persons intend to review on a continuing basis their respective investments in the Shares and may, subject to the continuing evaluation of the factors discussed herein, acquire from time to time additional Shares in the open market or in privately negotiated transactions. Depending on the factors discussed herein, the Reporting Persons may, from time to time, retain or sell all or a portion of their respective holdings of the Shares in the open market or in privately negotiated transactions. In addition certain Reporting Persons may, from time to time, elect to acquire Shares through the exercise of options. Any open market or privately negotiated purchases or sales or option exercises may be made at any time without further prior notice. Each of the Reporting Persons reserves the right to cease his or its participation in a group with the other Reporting Persons. Any action that any of the Reporting Persons might undertake with respect to the Shares, including the exercise of options to purchase Shares currently held by certain Reporting Persons, will be dependent upon its or his individual review of numerous factors, including, among other things, the availability of Shares for purchase and the price levels of Page 14 of 31 pages 15 such Shares, general market and economic conditions, ongoing evaluation of the Company's business, financial condition, operations and prospects, the relative attractiveness of alternative business and investment opportunities, the actions of the management and the Board of Directors of the Company, and other future developments. Although the foregoing reflects activities currently contemplated by the Reporting Persons with respect to the Company, the foregoing is subject to change at any time, and there can be no assurance that any of the Reporting Persons will purchase additional Shares or take any of the other actions referred to above. Except as set forth above and in Item 6, none of the Reporting Persons has any present plans or intentions that would result in or relate to any of the transactions described in subparagraphs (a) through (j) of Item 4 of Schedule 13D. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER (a) and (b). As of the date hereof, Whelan directly owned 140,615 Shares and held options to acquire an additional 200,000 Shares that expire on May 16, 1996. Whelan has the sole power to vote or direct the vote, and to dispose or to direct the disposition of, the Shares that it owns directly. As of the date hereof, the Flannery Trust directly owned 18,357 Shares and held options to acquire an additional 8,000 Shares that expire in January 1996. Flannery has the sole power to vote or direct the vote, and to dispose or to direct the disposition of, the Shares that the Flannery Trust owns directly. Flannery, as the principal executive officer and a 75% common stockholder of Whelan, may also be deemed to own beneficially the Shares owned by Whelan. The foregoing information does not reflect 2,500 Shares owned by Flannery's wife as to which Flannery disclaims beneficial ownership. Whelan Securities, in the ordinary course of its business as a broker-dealer, has purchased and sold shares of Common Stock for the accounts of its customers. Flannery has advised the Reporting Persons that all such customer accounts are non-discretionary and that neither Whelan nor Whelan Securities has any control over buying, selling or voting shares of Common Stock in such accounts. As a result, Whelan, Whelan Securities or its clearing agent may be the record owner of certain of such shares of Common Stock over which it does not possess beneficial ownership. As of the date hereof, Baker directly owned 10,000 Shares and held options to acquire 100,000 Shares that expire on May 16, 1996. Baker has the sole power to vote or direct the vote, and to dispose or to direct the disposition of, the Shares that he owns directly. As of the date hereof, Kaufman owned 581,500 Shares either directly or through an individual retirement account. Kaufman has the sole power to vote or direct the vote, and to dispose or to direct the disposition of, all of such Shares. As of the date hereof, the Kaufman Trust directly owned 20,000 Shares. Kaufman, as the sole trustee of the Kaufman Trust, has the sole power to vote or direct the vote, and to dispose or to direct the disposition of, the Shares owned by the Kaufman Trust. Kaufman disclaims beneficial ownership of all Shares owned by the Kaufman Trust. The foregoing information does not include 10,500 Shares owned by Gloria Kaufman, Kaufman's wife, as to which Kaufman disclaims beneficial ownership. Page 15 of 31 pages 16 As of the date hereof, Stone owned 46,000 Shares and held (i) options to acquire 100,000 Shares that expire on May 16, 1996 and (ii) options to acquire 10,000 shares that expire in January 1996. Stone has the sole power to vote or direct the vote, and to dispose or to direct the disposition of, the Shares that he owns directly. As of the date hereof, the Washburn Revocable Trust directly owned 39,545 Shares. Washburn, as a co-trustee of the Washburn Revocable Trust, shares the power to vote or direct the vote, and to dispose or to direct the disposition of, all of such Shares. Suzanne Washburn is also a co-trustee of the Washburn Revocable Trust. As of the date hereof, the Washburn Trusts directly owned 193,791 Shares. Washburn, as the sole trustee of the Washburn Trusts, has the sole power to vote or direct the vote, and to dispose or to direct the disposition of, all of such Shares. Except as set forth above, neither the filing of this Report nor any of its contents shall be deemed to constitute an admission that any Reporting Person is the beneficial owner of any of the shares of Common Stock owned by another Reporting Person for purposes of Section 13(d) of the Exchange Act or for any other purpose, and such beneficial ownership is expressly disclaimed. (c) Schedule II hereto sets forth a list of each transaction in the Common Stock effected by the Reporting Persons since October 16, 1995. (d) Not Applicable. (e) Not Applicable. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIP WITH RESPECT TO THE SECURITIES OF THE ISSUER The information set forth in Item 3 and Item 4 above is hereby incorporated by reference herein. The members of the Committee have an oral agreement pursuant to which each of them has agreed to cooperate in the solicitation of stockholder consents in favor of (A) amending the Company's bylaws in order to facilitate the removal and replacement of the current members of the Board, (B) removing all of the current directors of the Company, and (C) filling the vacancies created by the action taken in clause (B) with the Committee Nominees. Flannery, Baker, Kaufman, Stone and Washburn have agreed to share expenses associated with the action described above and have established an initial fund of $500,000 to pay such expenses. However, since the Committee deems its activities to be in the best interest of the Company and all the Company's stockholders, the Committee intends, to the extent legally permissible, to seek reimbursement from the Company for any expenses or costs incurred in connection therewith and will seek stockholder approval of such reimbursement if required by law. Page 16 of 31 pages 17 Prior to December 14, 1995, Whelan had acquired options to purchase an aggregate of 400,000 Shares from affiliates of Ardsley Advisory Partners, the largest single shareholder of the Company, for an aggregate purchase price of $36,000. Such options are exercisable at an exercise price of $8.25 per Share and expire on May 16, 1996. Whelan has entered into agreements dated as of December 14, 1995, pursuant to which Whelan sold a portion of such options covering 100,000 Shares to each of Baker and Stone. Baker and Stone each paid $9,000 in consideration of such sale. Whelan has entered into an agreement dated as of December 14, 1995, under which Washburn will be entitled to receive a portion of the net profits, if any, from the exercise and sale of the 200,000 Shares underlying the options held by Whelan if Washburn is not reimbursed for expenses incurred in connection with the actions contemplated by this Schedule 13D upon termination of the consent solicitation. The amount payable to Washburn will be equal to the lesser of (i) 30% of such net profits and (ii) the aggregate amount of such expenses funded by Washburn as to which no reimbursement is received. The Committee has retained Morrow & Co., Inc. for advice and assistance in solicitation of consents and has executed an engagement letter with Morrow & Co., Inc. providing for the payment of a fee of $150,000 plus reimbursement of expenses. The engagement letter provides Morrow & Co., Inc. with indemnity from certain liabilities including liabilities arising under Federal securities laws. A copy of each of the written agreements described in this Item 6 is attached hereto as Exhibits 2, 3, 4, 5 and 6, respectively, and is incorporated herein by reference. Except as described in Item 3, Item 4, Item 5 and this Item 6, none of the members of the Committee have any contracts, arrangements, understandings or relationships (legal or otherwise) with any person with respect to shares of Common Stock, including, but not limited to (i) transfer or voting of any shares of Common Stock, (ii) finder's fees, (iii) joint ventures, (iv) loan or option arrangements, (v) puts or calls, (vi) guarantees of profits, (vii) division of profits or loss, or (viii) the giving or withholding of proxies. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS 1. Written Agreement among the Reporting Persons regarding Joint Filing of Schedule 13D and Powers of Attorney. 2. Option Agreement, dated as of December 14, 1995, between Whelan and Stone. 3. Option Agreement, dated as of December 14, 1995, between Whelan and Baker. 4. Agreement, dated as of December 14, 1995, between Whelan and Washburn. 5. Option Agreements with various affiliates of Ardsley Advisory Partners. Page 17 of 31 pages 18 6. Engagement Letter with Morrow & Co., Inc. (to be filed by amendment). Page 18 of 31 pages 19 SIGNATURE After reasonable inquiry and to the best of his knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct. Dated: December 22, 1995 /s/ Kevin S. Flannery ------------------------------ Kevin S. Flannery Page 19 of 31 pages 20 SIGNATURE After reasonable inquiry and to the best of his knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct. Dated: December 22, 1995 WHELAN MANAGEMENT CORP. By: /s/ Kevin S. Flannery ------------------------------- Name: Kevin S. Flannery Title: President Page 20 of 31 pages 21 SIGNATURE After reasonable inquiry and to the best of his knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct. Dated: December 22, 1995 /s/ George F. Baker ------------------------------- George F. Baker Page 21 of 31 pages 22 SIGNATURE After reasonable inquiry and to the best of his knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct. Dated: December 22, 1995 /s/ Alan Kaufman ------------------------------- Alan Kaufman Page 22 of 31 pages 23 SIGNATURE After reasonable inquiry and to the best of his knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct. Dated: December 22, 1995 KAUFMAN CHILDREN'S TRUST By: /s/ Alan Kaufman ------------------------------- Name: Alan Kaufman Title: Trustee Page 23 of 31 pages 24 SIGNATURE After reasonable inquiry and to the best of his knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct. Dated: December 22, 1995 /s/ James H. Stone ------------------------------- James H. Stone Page 24 of 31 pages 25 SIGNATURE After reasonable inquiry and to the best of his knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct. Dated: December 22, 1995 /s/ Robert S. Washburn ------------------------------- Robert S. Washburn Page 25 of 31 pages 26 SIGNATURE After reasonable inquiry and to the best of his knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct. Dated: December 22, 1995 ROBERT S. AND SUZANNE P. WASHBURN REVOCABLE TRUST By: /s/ Robert S. Washburn ------------------------------- Name: Robert S. Washburn Title: Co-Trustee Page 26 of 31 pages 27 SIGNATURE After reasonable inquiry and to the best of his knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct. Dated: December 22, 1995 ROBERT S. WASHBURN MONEY PURCHASE, PENSION AND PROFIT SHARING KEOGH PLAN TRUSTS By: /s/ Robert S. Washburn ------------------------------- Name: Robert S. Washburn Title: Trustee Page 27 of 31 pages 28 SIGNATURE After reasonable inquiry and to the best of his knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct. Dated: December 22, 1995 WHELAN MANAGEMENT CORP. /s/ Kevin S. Flannery ------------------------------- By: Kevin S. Flannery President Page 28 of 31 pages 29 SCHEDULE I Robert Thomas (1) present occupation: Vice President and Chief Financial Officer of Whelan (2) business address: P.O. Box 1970 8 Holley Street Lakeville, CT 06039 (3) Citizenship: United States of America Suzanne Washburn (1) present occupation: homemaker (2) business address: Whelan Management Corp. P.O. Box 1970 8 Holley Street Lakeville, CT. 06039 (3) Citizenship: United States of America Page 29 of 31 pages 30 SCHEDULE II The following tables set forth all transactions in the Shares effected by the Reporting Persons since October 16, 1995. FLANNERY ENTITIES WHELAN MANAGEMENT CORP.
Number Type of Transaction Date of Shares Price per Share Location ------------------- ---- --------- --------------- -------- Purchase 10/16/95 7,500 7 1/2 Exchange Purchase 10/16/95 8,000 7 5/8 Exchange Sale 10/18/95 3,000 8 Exchange Sale 10/18/95 7,000 7 7/8 Exchange Sale 10/25/95 8,000 8 3/8 Exchange Sale 10/25/95 42,000 8 1/4 Exchange Purchase 10/27/95 900 8 3/8 Exchange Purchase 10/27/95 2,000 8 1/2 Exchange Purchase 10/30/95 45,000 8 1/4 Exchange Purchase 11/15/95 500 7 7/8 Exchange Purchase of Option 11/16/95 400,000 (1) Private Purchase 12/01/95 1,000 8 3/8 Exchange Sale 12/07/95 7,500 8 1/2 Exchange Sale 12/08/95 10,500 8 1/2 Exchange Sale 12/11/95 13,000 8 1/2 Exchange Grant of Option 12/14/95 100,000 (2) Private Grant of Option 12/14/95 100,000 (2) Private FLANNERY Sale 10/16/95 8,000 7 5/8 Exchange Sale 12/19/95 10,000 8 3/8 Exchange - ---------------
(1) The options are exercisable at a price of $8.25 per Share. The total purchase price for the options was $36,000. (2) The options are exercisable at a price of $8.25 per Share. The total sale price for the options was $18,000. Page 30 of 31 pages 31 BAKER
Number Type of Transaction Date of Shares Price per Share Location ------------------- ---- --------- --------------- -------- Acquisition of 12/14/95 100,000 (1) Private Option - ---------------
(1) The options are exercisable at a price of $8.25 per Share. The total acquisition price for the options was $9,000. KAUFMAN None STONE
Number Type of Transaction Date of Shares Price per Share Location ------------------- ---- --------- --------------- -------- Exercise of Option 12/16/95 11,000 8.37 Exchange Acquisition of 12/14/95 100,000 (1) Private Option - ---------------
(1) The options are exercisable at a price of $8.25 per Share. The total acquisition price for the options was $9,000. WASHBURN ENTITIES WASHBURN TRUSTS
Number Type of Transaction Date of Shares Price per Share Location ------------------- ---- --------- --------------- -------- Sale 10/18/95 15,000 $8.375 Exchange Sale 10/24/95 4,000 $8.375 Exchange Purchase 12/4/95 3,100 $8.25 Exchange Purchase 12/7/95 1,900 $8.25 Exchange
WASHBURN REVOCABLE TRUST None Page 31 of 31 pages 32 INDEX TO EXHIBITS EXHIBIT NUMBER DESCRIPTION ------- ----------- 99.1 Written Agreement among the Reporting Persons regarding Joint Filing of Schedule 13D and Powers of Attorney. 99.2 Option Agreement, dated as of December 14, 1995, between Whelan and Stone. 99.3 Option Agreement, dated as of December 14, 1995, between Whelan and Baker. 99.4 Agreement, dated as of December 14, 1995, between Whelan and Washburn. 99.5 Option Agreements with various affiliates of Ardsley Advisory Partners. EX-99.1 2 JOINT FILING AGREEMENT 1 EXHIBIT 1 JOINT FILING AGREEMENT AGREEMENT, dated as of December 14, 1995, by and among the parties identified on the signature pages hereto. WHEREAS, each of the parties hereto beneficially owns shares of Common Stock, par value $0.16 2/3 per share ("Common Stock"), or options to purchase shares of Common Stock (collectively, the "Company Securities") of Tesoro Petroleum Corporation, a Delaware corporation; and WHEREAS, the parties hereto may be deemed to constitute a "group" with respect to the beneficial ownership of the Company Securities for purposes of Rule 13d-5 and Schedule 13D promulgated by the Securities and Exchange Commission; NOW, THEREFORE, the parties hereto agree as follows: 1. The parties hereto shall prepare a single statement containing the information required by Schedule 13D with respect to their respective interests in the Company Securities (the "Schedule 13D"), and the Schedule 13D shall be filed on behalf of each of them. 2. Each party hereto shall be responsible for the timely filing of the Schedule 13D and any necessary amendments thereto, and for the completeness and accuracy of the information concerning him or it contained therein, but shall not be responsible for the completeness and accuracy of the information concerning any other party contained therein, except to the extent that he or it knows or has reason to believe that such information is inaccurate. 3. The parties hereby designate Kevin S. Flannery, George F. Baker, Alan Kaufman, James H. Stone and Robert S. Washburn as the Committee for New Management of Tesoro Petroleum Corporation in order to facilitate a concerted action to enhance shareholder value of the Company. 4. This Agreement shall continue unless terminated by any party hereto. 5. John M. Huggins, Esq. shall be designated as the person authorized to receive notices and communications with respect to the Schedule 13D and any amendments thereto. 6. This Agreement may be executed in counterparts, each of which taken together shall constitute one and the same instrument. 2 SIGNATURE PAGE TO JOINT FILING AGREEMENT IN WITNESS WHEREOF, the undersigned have executed this Agreement in one or more counterparts as of the date first above written. /s/ Kevin S. Flannery ---------------------------- Kevin S. Flannery 3 SIGNATURE PAGE TO JOINT FILING AGREEMENT POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and appoints Kevin S. Flannery, his or its true and lawful attorney-in-fact and agent with full power of substitution and re-substitution for him or it and in his or its name, place and stead, in any and all capacities, to sign the initial and any or all amendments to his or its Schedule 13D, dated December 22, 1995, with respect to the common stock of Tesoro Petroleum Corporation and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, any national securities exchange and the corporation, granting unto said attorney-in-fact and agent full power and authority, to do and perform each and every act and thing necessary or appropriate to be done in and about the premises, to all intents and purposes and as fully as he or it might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or his substitutes may lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned have executed this Agreement in one or more counterparts as of the date first above written. /s/ Alan Kaufman ---------------------------- Alan Kaufman 4 SIGNATURE PAGE TO JOINT FILING AGREEMENT POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and appoints Kevin S. Flannery, his or its true and lawful attorney-in-fact and agent with full power of substitution and re-substitution for him or it and in his or its name, place and stead, in any and all capacities, to sign the initial and any or all amendments to his or its Schedule 13D, dated December 22, 1995, with respect to the common stock of Tesoro Petroleum Corporation and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, any national securities exchange and the corporation, granting unto said attorney-in-fact and agent full power and authority, to do and perform each and every act and thing necessary or appropriate to be done in and about the premises, to all intents and purposes and as fully as he or it might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or his substitutes may lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned have executed this Agreement in one or more counterparts as of the date first above written. /s/ James H. Stone ---------------------------- James H. Stone 5 SIGNATURE PAGE TO JOINT FILING AGREEMENT POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and appoints Kevin S. Flannery, his or its true and lawful attorney-in-fact and agent with full power of substitution and re-substitution for him or it and in his or its name, place and stead, in any and all capacities, to sign the initial and any or all amendments to his or its Schedule 13D, dated December 22, 1995, with respect to the common stock of Tesoro Petroleum Corporation and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, any national securities exchange and the corporation, granting unto said attorney-in-fact and agent full power and authority, to do and perform each and every act and thing necessary or appropriate to be done in and about the premises, to all intents and purposes and as fully as he or it might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or his substitutes may lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned have executed this Agreement in one or more counterparts as of the date first above written. /s/ Robert S. Washburn ---------------------------- Robert S. Washburn 6 SIGNATURE PAGE TO JOINT FILING AGREEMENT POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and appoints Kevin S. Flannery, his or its true and lawful attorney-in-fact and agent with full power of substitution and re-substitution for him or it and in his or its name, place and stead, in any and all capacities, to sign the initial and any or all amendments to his or its Schedule 13D, dated December 22, 1995, with respect to the common stock of Tesoro Petroleum Corporation and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, any national securities exchange and the corporation, granting unto said attorney-in-fact and agent full power and authority, to do and perform each and every act and thing necessary or appropriate to be done in and about the premises, to all intents and purposes and as fully as he or it might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or his substitutes may lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned have executed this Agreement in one or more counterparts as of the date first above written. /s/ Alan Kaufman ---------------------------- Alan Kaufman 7 SIGNATURE PAGE TO JOINT FILING AGREEMENT POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and appoints Kevin S. Flannery, his or its true and lawful attorney-in-fact and agent with full power of substitution and re-substitution for him or it and in his or its name, place and stead, in any and all capacities, to sign the initial and any or all amendments to his or its Schedule 13D, dated December 22, 1995, with respect to the common stock of Tesoro Petroleum Corporation and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, any national securities exchange and the corporation, granting unto said attorney-in-fact and agent full power and authority, to do and perform each and every act and thing necessary or appropriate to be done in and about the premises, to all intents and purposes and as fully as he or it might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or his substitutes may lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned have executed this Agreement in one or more counterparts as of the date first above written. KAUFMAN CHILDREN'S TRUST By: /s/ Alan Kaufman ---------------------------- Name: Alan Kaufman Title: Trustee 8 SIGNATURE PAGE TO JOINT FILING AGREEMENT POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and appoints Kevin S. Flannery, his or its true and lawful attorney-in-fact and agent with full power of substitution and re-substitution for him or it and in his or its name, place and stead, in any and all capacities, to sign the initial and any or all amendments to his or its Schedule 13D, dated December 22, 1995, with respect to the common stock of Tesoro Petroleum Corporation and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, any national securities exchange and the corporation, granting unto said attorney-in-fact and agent full power and authority, to do and perform each and every act and thing necessary or appropriate to be done in and about the premises, to all intents and purposes and as fully as he or it might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or his substitutes may lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned have executed this Agreement in one or more counterparts as of the date first above written. ROBERT S. AND SUZANNE P. WASHBURN REVOCABLE TRUST By: /s/ Robert S. Washburn ---------------------------- Name: Robert S. Washburn Title: Co-Trustee 9 SIGNATURE PAGE TO JOINT FILING AGREEMENT POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and appoints Kevin S. Flannery, his or its true and lawful attorney-in-fact and agent with full power of substitution and re-substitution for him or it and in his or its name, place and stead, in any and all capacities, to sign the initial and any or all amendments to his or its Schedule 13D, dated December 22, 1995, with respect to the common stock of Tesoro Petroleum Corporation and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, any national securities exchange and the corporation, granting unto said attorney-in-fact and agent full power and authority, to do and perform each and every act and thing necessary or appropriate to be done in and about the premises, to all intents and purposes and as fully as he or it might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or his substitutes may lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned have executed this Agreement in one or more counterparts as of the date first above written. ROBERT S. WASHBURN MONEY PURCHASE, PENSION AND PROFIT SHARING KEOGH PLAN TRUSTS By: /s/ Robert S. Washburn ---------------------------- Name: Robert S. Washburn Title: Trustee 10 SIGNATURE PAGE TO JOINT FILING AGREEMENT IN WITNESS WHEREOF, the undersigned have executed this Agreement in one or more counterparts as of the date first above written. WHELAN MANAGEMENT CORP. /s/ Kevin S. Flannery ---------------------------- By: Kevin S. Flannery President EX-99.2 3 OPTION AGREEMENT BETWEEN WHELAN & STONE 1 EXHIBIT 2 OPTION AGREEMENT This Option Agreement (the "Agreement") is made and entered into as of December 14, 1995, by and between Whelan Management Corp. ("Whelan") and James H. Stone ("Buyer"). WITNESSETH WHEREAS, Whelan owns options to purchase 400,000 shares of the common stock, par value $.16 2/3 per share (the "Common Stock"), of Tesoro Petroleum Corporation (the "Company") expiring on May 16, 1996 described in Exhibit 1 hereto (the "Whelan Options"); WHEREAS, the options described on Exhibit 1 are exercisable in part or in full and are freely transferable; WHEREAS, Whelan wishes to sell to Buyer and Buyer wishes to buy from Whelan pursuant to the terms contained in this Agreement, options to purchase 100,000 shares of Common Stock at $8.25 per share which at Whelan's sole discretion shall consist of options from one or more of the Whelan Options listed on Exhibit 1 (the "Buyer Options"); and WHEREAS, Buyer wishes for Whelan to continue to hold the Buyer Options for the benefit of Buyer; NOW, THEREFORE, in consideration of the mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. Purchase of Buyer Options. Buyer hereby purchases from Whelan and Whelan hereby sells to Buyer the Buyer Options for a purchase price of $9,000 (the "Purchase Price"). 2. Terms of Buyer Options. Buyer and Whelan agree that the provisions of the Buyer Options shall be identical to the provisions of the Whelan Options, and that nothing contained in this Agreement shall be interpreted to alter, in any respect, the provision of the Whelan Options or to grant Buyer any additional or greater rights under the Buyer Options than Whelan currently enjoys under the Whelan Options. A copy of one of the Whelan Options is attached hereto as Exhibit 2. 3. Possession of Buyer Options. Buyer and Whelan agree that the Buyer Options shall remain in the possession and in the name of Whelan for the benefit of Buyer unless Buyer otherwise indicates in writing, in which case Whelan shall promptly comply with the terms 2 of such written instructions. During the period in which the Buyer Options remain in Whelan's possession and name, Whelan agrees to promptly exercise all or part of the Buyer Options for the benefit of Buyer only upon (i) Buyer's written request and (ii) receipt of Buyer's payment to Whelan of the exercise price relating to that portion of the Buyer Options to be exercised. Whelan further agrees to promptly transfer to Buyer the shares of Common Stock issued upon the full or partial exercise of the Buyer Options pursuant to the previous sentence. 4. Representations of Whelan. Whelan hereby represents and warrants to Buyer that Whelan is the owner of all the legal right, title and interest in and to the Buyer Options, free and clear of any lien, encumbrance or other adverse claim of any nature. 5. Covenants of Whelan. From and after the date hereof, Whelan agrees not to dispose of or exercise the Buyer Options except pursuant to this Agreement. For purposes hereof, the expiration of the Whelan Option by its terms shall not be deemed to be a disposition. 6. Transfer to Buyer of Buyer Options. At any time, Whelan shall have the right to transfer the Buyer Options to Buyer, at which time this Agreement shall terminate. 7. Scope of Buyer Options. The Buyer Options are options only with respect to 100,000 shares of Common Stock covered by the Whelan Options, and if the Whelan Options are for any reason invalid or not honored, Whelan shall have no liability as a result thereof. IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as of the date first written above. WHELAN MANAGEMENT CORP. By: /s/ Kevin S. Flannery ----------------------------- Name: Kevin S. Flannery Title: President /s/ James H. Stone --------------------------------- James H. Stone, Buyer EX-99.3 4 OPTION AGREEMENT BETWEEN WHELAN & BAKER 1 EXHIBIT 3 OPTION AGREEMENT This Option Agreement (the "Agreement") is made and entered into as of December 14, 1995, by and between Whelan Management Corp. ("Whelan") and George F. Baker ("Buyer"). WITNESSETH WHEREAS, Whelan owns options to purchase 400,000 shares of the common stock, par value $.16 2/3 per share (the "Common Stock"), of Tesoro Petroleum Corporation (the "Company") expiring on May 16, 1996 described in Exhibit 1 hereto (the "Whelan Options"); WHEREAS, the options described on Exhibit 1 are exercisable in part or in full and are freely transferable; WHEREAS, Whelan wishes to sell to Buyer and Buyer wishes to buy from Whelan pursuant to the terms contained in this Agreement, options to purchase 100,000 shares of Common Stock at $8.25 per share which at Whelan's sole discretion shall consist of options from one or more of the Whelan Options listed on Exhibit 1 (the "Buyer Options"); and WHEREAS, Buyer wishes for Whelan to continue to hold the Buyer Options for the benefit of Buyer; NOW, THEREFORE, in consideration of the mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. Purchase of Buyer Options. Buyer hereby purchases from Whelan and Whelan hereby sells to Buyer the Buyer Options for a purchase price of $9,000 (the "Purchase Price"). 2. Terms of Buyer Options. Buyer and Whelan agree that the provisions of the Buyer Options shall be identical to the provisions of the Whelan Options, and that nothing contained in this Agreement shall be interpreted to alter, in any respect, the provision of the Whelan Options or to grant Buyer any additional or greater rights under the Buyer Options than Whelan currently enjoys under the Whelan Options. A copy of one of the Whelan Options is attached hereto as Exhibit 2. 3. Possession of Buyer Options. Buyer and Whelan agree that the Buyer Options shall remain in the possession and in the name of Whelan for the benefit of Buyer unless Buyer otherwise indicates in writing, in which case Whelan shall promptly comply with the terms 2 of such written instructions. During the period in which the Buyer Options remain in Whelan's possession and name, Whelan agrees to promptly exercise all or part of the Buyer Options for the benefit of Buyer only upon (i) Buyer's written request and (ii) receipt of Buyer's payment to Whelan of the exercise price relating to that portion of the Buyer Options to be exercised. Whelan further agrees to promptly transfer to Buyer the shares of Common Stock issued upon the full or partial exercise of the Buyer Options pursuant to the previous sentence. 4. Representations of Whelan. Whelan hereby represents and warrants to Buyer that Whelan is the owner of all the legal right, title and interest in and to the Buyer Options, free and clear of any lien, encumbrance or other adverse claim of any nature. 5. Covenants of Whelan. From and after the date hereof, Whelan agrees not to dispose of or exercise the Buyer Options except pursuant to this Agreement. For purposes hereof, the expiration of the Whelan Option by its terms shall not be deemed to be a disposition. 6. Transfer to Buyer of Buyer Options. At any time, Whelan shall have the right to transfer the Buyer Options to Buyer, at which time this Agreement shall terminate. 7. Scope of Buyer Options. The Buyer Options are options only with respect to 100,000 shares of Common Stock covered by the Whelan Options, and if the Whelan Options are for any reason invalid or not honored, Whelan shall have no liability as a result thereof. IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as of the date first written above. WHELAN MANAGEMENT CORP. By: /s/ Kevin S. Flannery ----------------------------- Name: Kevin S. Flannery Title: President /s/ George F. Baker --------------------------------- George F. Baker, Buyer EX-99.4 5 AGREEMENT BETWEEN WHELAN & WASHBURN 1 EXHIBIT 4 AGREEMENT This Agreement (the "Agreement") is made and entered into as of December 14, 1995, by and between Whelan Management Corp. ("Whelan") and Robert S. Washburn ("Washburn"). WITNESSETH WHEREAS, Whelan owns options to purchase 200,000 shares of common stock, par value $.16 2/3 per share (the "Common Stock"), of Tesoro Petroleum Corporation (the "Company") at $8.25 per share, subject to adjustment, which expire on May 16, 1996 (the "Options"); WHEREAS, Washburn has agreed to participate in a consent solicitation relating to the Company (the "Solicitation") and has agreed to share in the payment of expenses of the Solicitation (the "Expense Payments") and to initially contribute $100,000 to the Whelan Management Escrow Account (the "Whelan Account") in connection therewith; NOW, THEREFORE, in consideration of the mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. Contribution. Washburn will upon the execution of this Agreement contribute to the Whelan Account $100,000. 2. Right to Reimbursement. In the event that Washburn is not reimbursed for his Expense Payments upon the termination of the Solicitation, Whelan hereby agrees to pay to Washburn the lesser of (i) 30% of the Profits (as defined below) or (ii) an amount equal to his Expense Payments. 3. Profits. Whelan and Washburn agree that the profits (the "Profits") realized from Whelan's exercise of the Options and the sale of shares of Common Stock acquired upon the exercise of such Options, shall equal the difference obtained by subtracting (i) the sum of the option price plus the option strike price from (ii) the net proceeds from the sale of the 200,000 shares of Common Stock acquired pursuant to the exercise of the Options. 4. No Duty to Sell Common Stock. Notwithstanding anything to the contrary contained in this Agreement, Whelan shall not have any duty to exercise the Options or sell the shares of Common Stock acquired by Whelan through the exercise of the Options. In the event that Whelan does not elect to exercise or sell the Options or to sell shares of Common Stock, Profits shall be computed as if shares of Common Stock were sold using as 2 the sales price the last trade, regular way, on the New York Stock Exchange on the day the Solicitation is terminated. 5. Liability for Options. The Parties hereto agree that if the Options are for any reason invalid or not honored, Whelan shall have no liability as a result thereof. 6. Expiration of Options. Upon the expiration of the Options this Agreement shall terminate. 7. Covenants of Whelan. As long as this Agreement is in effect, Whelan hereby agrees not to dispose of the Options. For purposes hereof, the expiration of the Options by their terms shall not be deemed to be a disposition. IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as of the date first written above. WHELAN MANAGEMENT CORP. By: /s/ Kevin Flannery ---------------------------- Name: Kevin Flannery Title: President /s/ Robert S. Washburn ----------------------------- Robert S. Washburn EX-99.5 6 OPTION AGREEMENTS 1 EXHIBIT 5 A R D S L E Y PARTNERS TRANSACTION The purpose of this letter agreement (the "Confirmation") is to set forth the terms and conditions of the Option Transaction entered into between Ardsley Partners Fund I, L.P. and Whelan Management Corp. on the Trade Date specified below (the "Option"). The definitions and provisions contained in the 1991 ISDA Definitions (as published by the International Swaps & Derivatives Association, Inc., ("ISDA")) (the "Definitions") are incorporated into this Confirmation. In the event of any inconsistency between the Definitions and provisions of this Confirmation, this Confirmation will govern. Each party is hereby advised, and each such party acknowledges, that the other party has engaged in (or refrained from engaging in) substantial financial transactions and has taken other material actions in reliance upon the parties' entry into the Option to which this Confirmation relates on the terms and conditions set forth below. This Confirmation will be governed by and construed in accordance with the laws of the State of New York, without reference to choice of law doctrine. The parties hereto irrevocably submit to the non-exclusive jurisdiction of the courts of the State of New York and the United States Court for the Southern District of New York in connection with all matters relating hereto, and waive any objection to the laying of venue in, and any claim of inconvenient forum with respect to, these courts. The terms of the Option to which this Confirmation relates are as follows: General Terms: Effective Date: November 16, 1995 Trade Date: November 16, 1995 Option Style: American Option Type: Call Seller: Ardsley Partners Fund I, L.P. Buyer: Whelan Management Corp. Underlying Stock: Tesoro Petroleum Corporation Common Stock
2 Number of Shares: 90,000 Number of Option Units: 900 Strike Price: USD $8.25 per share Premium: USD $8,100.00 payable as per "Appendix B" which follows. Premium Payment Date: November 22, 1995 Business Day: Any day (i) on which commercial banks are open for business (including dealings in foreign exchange and foreign currency deposits) in New York and (ii) which is a scheduled trading day on the New York Stock Exchange, the Chicago Board Options Exchange and the Chicago Mercantile Exchange, other than a day on which trading on any such exchange is scheduled to close prior to its regular weekday closing time. Exchanges: New York Stock Exchange, American Stock Exchange and NASDAQ. Calculating Agent: A third party acceptable to Buyer and Seller, whose determinations and calculations shall be binding in the absence of manifest error. Procedure for Exercise: Exercise Notice: In order to exercise all or part of the Option, an Exercise Notice in the form set forth below as appendix "A" shall be sent by facsimile transmission, telex, hand or overnight delivery to the Seller. The seller will then sign, date and time the Exercise Notice and return it to the Buyer to confirm the Exercise.
3 Expiration Date: May 16, 1996 or, if that date is not a Business Day, the first following day that is a Business Day. Partial Exercise: Allowed. After the Exercise Period, any unexercised Option Units will be deemed expired worthless and no longer subject to the terms of this Confirmation. If only a part of the Option is exercised, the seller's confirmation(s) of the Exercise Notice will include a "Remaining Number or Shares". This quantity shall be considered to be the new Number of Shares for the Option until the next Partial Exercise or the Expiration Date, whichever comes first. Any confirmed Exercise Notice for partial exercises will become an addendum to the Confirmation to support changes to the Number of Shares. Sellers' Telephone and Facsimile Number Telephone: 203-629-0661 for the purpose of Giving Notice: Facsimile: 203-629-0661 Market Disruption Event: The occurrence or existence on any Business Day during the one-half hour period that ends at the close of trading on the Exchange on any Business Day of any suspension of or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant exchange or otherwise) on (i) the Exchange in the Underlying Stock or (ii) in options contracts on the Underlying Stock, if, in the determination of the Calculation Agent, such suspension or limitation is material. The Calculation Agent shall as soon as reasonably practicable under the circumstances notify the other party of the existence or occurrence of a Market Disruption Event for the purpose of addressing and or recomputing any necessary adjustments to the Underlying Stock.
4 Adjustments to The Option: During the life of the Option, if any adjustment is made by The Options Clearing Corporation or its successors ("OCC") in the terms of the outstanding OCC-issued options ("OCC Options") on the Underlying Stock, an equivalent adjustment shall be made in the terms of the Option. If any time during the life of the Option there shall be no outstanding OCC Options on the Underlying Stock, and an event shall occur for which an adjustment might otherwise be made under the By-Laws, Rules, and stated policies of OCC applicable to the adjustment of OCC Options (the "OCC Adjustment Rules"), then adjustment shall be made in the terms of the Option applying the principles set forth in the OCC Adjustment Rules. In addition to the foregoing sentence, adjustment shall also be made (by applying the principles set forth in the OCC Adjustment Rules) in the terms of the Option for any and all cash dividends, stock dividends, stock distributions and stock splits on the Underlying Stock, and distributions of property other than additional Underlying Stock during the life of the Option, regardless of the size or amount thereof and regardless of whether adjustment is made by OCC in respect thereof. Settlement Terms: Physical Delivery: The share quantity of (Number of Option Units Exercised * 100) will be delivered via the Depository Trust Co. to the custodian or custodians to be named by the Buyer. Physical Delivery Date: 3 Business Days after Valuation Date.
Default: If the Buyer fails to make, when due, any payment or delivery required to be made by it under this Confirmation or under any other transaction with the Seller within five Business Days (or such shorter grace period provided in such other transaction) of notice of such failure being given to the Buyer, the Seller may, by notice to the Buyer, terminate the Option evidenced by this Confirmation. Counterparty Representation: Counterparty hereby represents that it has entered into this contract in order to offset in whole or in part earnings it expects from assets it has acquired or anticipates acquiring or liabilities it has incurred or anticipates incurring. 5 Transfer: This Transaction may be assigned or transferred by either party, the transferring party having given three (3) day's prior notice of such transfer or assignment. Please confirm your acceptance and agreement with the foregoing by immediately executing the copy of this Confirmation enclosed for that purpose and returning it to: Yours sincerely, By: Ardsley Partners By: /s/ Kevin M. McCormack ---------------------------- Name: Kevin M. McCormack Title: Partner Accepted and agreed as of the date first above written: By: WHELAN MANAGEMENT CORP. By: /s/ Kevin S. Flannery -------------------------- Name: Kevin S. Flannery Title: President 6 A R D S L E Y PARTNERS TRANSACTION The purpose of this letter agreement (the "Confirmation") is to set forth the terms and conditions of the Option Transaction entered into between Ardsley Partners Fund I, L.P. and Whelan Management Corp. on the Trade Date specified below (the "Option"). The definitions and provisions contained in the 1991 ISDA Definitions (as published by the International Swaps & Derivatives Association, Inc., ("ISDA")) (the "Definitions") are incorporated into this Confirmation. In the event of any inconsistency between the Definitions and provisions of this Confirmation, this Confirmation will govern. Each party is hereby advised, and each such party acknowledges, that the other party has engaged in (or refrained from engaging in) substantial financial transactions and has taken other material actions in reliance upon the parties' entry into the Option to which this Confirmation relates on the terms and conditions set forth below. This Confirmation will be governed by and construed in accordance with the laws of the State of New York, without reference to choice of law doctrine. The parties hereto irrevocably submit to the non-exclusive jurisdiction of the courts of the State of New York and the United States Court for the Southern District of New York in connection with all matters relating hereto, and waive any objection to the laying of venue in, and any claim of inconvenient forum with respect to, these courts. The terms of the Option to which this Confirmation relates are as follows: General Terms: Effective Date: November 16, 1995 Trade Date: November 16, 1995 Option Style: American Option Type: Call Seller: Ardsley Partners Fund II, L.P. Buyer: Whelan Management Corp. Underlying Stock: Tesoro Petroleum Corporation Common Stock
7 Number of Shares: 100,000 Number of Option Units: 1,000 Strike Price: USD $8.25 per share Premium: USD $9,000.00 payable as per "Appendix B" which follows. Premium Payment Date: November 22, 1995 Business Day: Any day (i) on which commercial banks are open for business (including dealings in foreign exchange and foreign currency deposits) in New York and (ii) which is a scheduled trading day on the New York Stock Exchange, the Chicago Board Options Exchange and the Chicago Mercantile Exchange, other than a day on which trading on any such exchange is scheduled to close prior to its regular weekday closing time. Exchanges: New York Stock Exchange, American Stock Exchange and NASDAQ. Calculating Agent: A third party acceptable to Buyer and Seller, whose determinations and calculations shall be binding in the absence of manifest error. Procedure for Exercise: Exercise Notice: In order to exercise all or part of the Option, an Exercise Notice in the form set forth below as appendix "A" shall be sent by facsimile transmission, telex, hand or overnight delivery to the Seller. The seller will then sign, date and time the Exercise Notice and return it to the Buyer to confirm the Exercise. Exercise Period: Any Business Day up to and including the Expiration Date between 9:00 am and 4:15 p.m. local time in New York.
8 Expiration Date: May 16, 1996 or, if that date is not a Business Day, the first following day that is a Business Day. Partial Exercise: Allowed. After the Exercise Period, any unexercised Option Units will be deemed expired worthless and no longer subject to the terms of this Confirmation. If only a part of the Option is exercised, the seller's confirmation(s) of the Exercise Notice will include a "Remaining Number or Shares". This quantity shall be considered to be the new Number of Shares for the Option until the next Partial Exercise or the Expiration Date, whichever comes first. Any confirmed Exercise Notice for partial exercises will become an addendum to the Confirmation to support changes to the Number of Shares. Sellers' Telephone and Facsimile Number Telephone: 203-629-0661 for the purpose of Giving Notice: Facsimile: 203-629-0661 Market Disruption Event: The occurrence or existence on any Business Day during the one-half hour period that ends at the close of trading on the Exchange on any Business Day of any suspension of or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant exchange or otherwise) on (i) the Exchange in the Underlying Stock or (ii) in options contracts on the Underlying Stock, if, in the determination of the Calculation Agent, such suspension or limitation is material. The Calculation Agent shall as soon as reasonably practicable under the circumstances notify the other party of the existence or occurrence of a Market Disruption Event for the purpose of addressing and or recomputing any necessary adjustments to the Underlying Stock.
9 Adjustments to The Option: During the life of the Option, if any adjustment is made by The Options Clearing Corporation or its successors ("OCC") in the terms of the outstanding OCC-issued options ("OCC Options") on the Underlying Stock, an equivalent adjustment shall be made in the terms of the Option. If any time during the life of the Option there shall be no outstanding OCC Options on the Underlying Stock, and an event shall occur for which an adjustment might otherwise be made under the By-Laws, Rules, and stated policies of OCC applicable to the adjustment of OCC Options (the "OCC Adjustment Rules"), then adjustment shall be made in the terms of the Option applying the principles set forth in the OCC Adjustment Rules. In addition to the foregoing sentence, adjustment shall also be made (by applying the principles set forth in the OCC Adjustment Rules) in the terms of the Option for any and all cash dividends, stock dividends, stock distributions and stock splits on the Underlying Stock, and distributions of property other than additional Underlying Stock during the life of the Option, regardless of the size or amount thereof and regardless of whether adjustment is made by OCC in respect thereof. Settlement Terms: Physical Delivery: The share quantity of (Number of Option Units Exercised * 100) will be delivered via the Depository Trust Co. to the custodian or custodians to be named by the Buyer. Physical Delivery Date: 3 Business Days after Valuation Date.
Default: If the Buyer fails to make, when due, any payment or delivery required to be made by it under this Confirmation or under any other transaction with the Seller within five Business Days (or such shorter grace period provided in such other transaction) of notice of such failure being given to the Buyer, the Seller may, by notice to the Buyer, terminate the Option evidenced by this Confirmation. Counterparty Representation: Counterparty hereby represents that it has entered into this contract in order to offset in whole or in part earnings it expects from assets it has acquired or anticipates acquiring or liabilities it has incurred or anticipates incurring. 10 Transfer: This Transaction may be assigned or transferred by either party, the transferring party having given three (3) day's prior notice of such transfer or assignment. Please confirm your acceptance and agreement with the foregoing by immediately executing the copy of this Confirmation enclosed for that purpose and returning it to: Yours sincerely, By: Ardsley Partners By: /s/ Kevin M. McCormack ---------------------------- Name: Kevin M. McCormack Title: Partner Accepted and agreed as of the date first above written: By: WHELAN MANAGEMENT CORP. By: /s/ Kevin S. Flannery -------------------------- Name: Kevin S. Flannery Title: President 11 A R D S L E Y PARTNERS TRANSACTION The purpose of this letter agreement (the "Confirmation") is to set forth the terms and conditions of the Option Transaction entered into between Ardsley Partners Fund I, L.P. and Whelan Management Corp. on the Trade Date specified below (the "Option"). The definitions and provisions contained in the 1991 ISDA Definitions (as published by the International Swaps & Derivatives Association, Inc., ("ISDA")) (the "Definitions") are incorporated into this Confirmation. In the event of any inconsistency between the Definitions and provisions of this Confirmation, this Confirmation will govern. Each party is hereby advised, and each such party acknowledges, that the other party has engaged in (or refrained from engaging in) substantial financial transactions and has taken other material actions in reliance upon the parties' entry into the Option to which this Confirmation relates on the terms and conditions set forth below. This Confirmation will be governed by and construed in accordance with the laws of the State of New York, without reference to choice of law doctrine. The parties hereto irrevocably submit to the non-exclusive jurisdiction of the courts of the State of New York and the United States Court for the Southern District of New York in connection with all matters relating hereto, and waive any objection to the laying of venue in, and any claim of inconvenient forum with respect to, these courts. The terms of the Option to which this Confirmation relates are as follows: General Terms: Effective Date: November 16, 1995 Trade Date: November 16, 1995 Option Style: American Option Type: Call Seller: Ardsley Offshore Fund, Ltd. Buyer: Whelan Management Corp. Underlying Stock: Tesoro Petroleum Corporation Common Stock
12 Number of Shares: 160,000 Number of Option Units: 1,600 Strike Price: USD $8.25 per share Premium: USD $14,400.00 payable as per "Appendix B" which follows. Premium Payment Date: November 22, 1995 Business Day: Any day (i) on which commercial banks are open for business (including dealings in foreign exchange and foreign currency deposits) in New York and (ii) which is a scheduled trading day on the New York Stock Exchange, the Chicago Board Options Exchange and the Chicago Mercantile Exchange, other than a day on which trading on any such exchange is scheduled to close prior to its regular weekday closing time. Exchanges: New York Stock Exchange, American Stock Exchange and NASDAQ. Calculating Agent: A third party acceptable to Buyer and Seller, whose determinations and calculations shall be binding in the absence of manifest error. Procedure for Exercise: Exercise Notice: In order to exercise all or part of the Option, an Exercise Notice in the form set forth below as appendix "A" shall be sent by facsimile transmission, telex, hand or overnight delivery to the Seller. The seller will then sign, date and time the Exercise Notice and return it to the Buyer to confirm the Exercise. Exercise Period: Any Business Day up to and including the Expiration Date between 9:00 am and 4:15 p.m. local time in New York.
13 Expiration Date: May 16, 1996 or, if that date is not a Business Day, the first following day that is a Business Day. Partial Exercise: Allowed. After the Exercise Period, any unexercised Option Units will be deemed expired worthless and no longer subject to the terms of this Confirmation. If only a part of the Option is exercised, the seller's confirmation(s) of the Exercise Notice will include a "Remaining Number or Shares". This quantity shall be considered to be the new Number of Shares for the Option until the next Partial Exercise or the Expiration Date, whichever comes first. Any confirmed Exercise Notice for partial exercises will become an addendum to the Confirmation to support changes to the Number of Shares. Sellers' Telephone and Facsimile Number Telephone: 203-629-0661 for the purpose of Giving Notice: Facsimile: 203-629-0661 Market Disruption Event: The occurrence or existence on any Business Day during the one-half hour period that ends at the close of trading on the Exchange on any Business Day of any suspension of or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant exchange or otherwise) on (i) the Exchange in the Underlying Stock or (ii) in options contracts on the Underlying Stock, if, in the determination of the Calculation Agent, such suspension or limitation is material. The Calculation Agent shall as soon as reasonably practicable under the circumstances notify the other party of the existence or occurrence of a Market Disruption Event for the purpose of addressing and or recomputing any necessary adjustments to the Underlying Stock.
14 Adjustments to The Option: During the life of the Option, if any adjustment is made by The Options Clearing Corporation or its successors ("OCC") in the terms of the outstanding OCC-issued options ("OCC Options") on the Underlying Stock, an equivalent adjustment shall be made in the terms of the Option. If any time during the life of the Option there shall be no outstanding OCC Options on the Underlying Stock, and an event shall occur for which an adjustment might otherwise be made under the By-Laws, Rules, and stated policies of OCC applicable to the adjustment of OCC Options (the "OCC Adjustment Rules"), then adjustment shall be made in the terms of the Option applying the principles set forth in the OCC Adjustment Rules. In addition to the foregoing sentence, adjustment shall also be made (by applying the principles set forth in the OCC Adjustment Rules) in the terms of the Option for any and all cash dividends, stock dividends, stock distributions and stock splits on the Underlying Stock, and distributions of property other than additional Underlying Stock during the life of the Option, regardless of the size or amount thereof and regardless of whether adjustment is made by OCC in respect thereof. Settlement Terms: Physical Delivery: The share quantity of (Number of Option Units Exercised * 100) will be delivered via the Depository Trust Co. to the custodian or custodians to be named by the Buyer. Physical Delivery Date: 3 Business Days after Valuation Date.
Default: If the Buyer fails to make, when due, any payment or delivery required to be made by it under this Confirmation or under any other transaction with the Seller within five Business Days (or such shorter grace period provided in such other transaction) of notice of such failure being given to the Buyer, the Seller may, by notice to the Buyer, terminate the Option evidenced by this Confirmation. Counterparty Representation: Counterparty hereby represents that it has entered into this contract in order to offset in whole or in part earnings it expects from assets it has acquired or anticipates acquiring or liabilities it has incurred or anticipates incurring. 15 Transfer: This Transaction may be assigned or transferred by either party, the transferring party having given three (3) day's prior notice of such transfer or assignment. Please confirm your acceptance and agreement with the foregoing by immediately executing the copy of this Confirmation enclosed for that purpose and returning it to: Yours sincerely, By: Ardsley Partners By: /s/ Kevin M. McCormack --------------------------- Name: Kevin M. McCormack Title: Partner Accepted and agreed as of the date first above written: By: WHELAN MANAGEMENT CORP. By: /s/ Kevin S. Flannery --------------------------- Name: Kevin S. Flannery Title: President 16 A R D S L E Y PARTNERS TRANSACTION The purpose of this letter agreement (the "Confirmation") is to set forth the terms and conditions of the Option Transaction entered into between Ardsley Partners Fund I, L.P. and Whelan Management Corp. on the Trade Date specified below (the "Option"). The definitions and provisions contained in the 1991 ISDA Definitions (as published by the International Swaps & Derivatives Association, Inc., ("ISDA")) (the "Definitions") are incorporated into this Confirmation. In the event of any inconsistency between the Definitions and provisions of this Confirmation, this Confirmation will govern. Each party is hereby advised, and each such party acknowledges, that the other party has engaged in (or refrained from engaging in) substantial financial transactions and has taken other material actions in reliance upon the parties' entry into the Option to which this Confirmation relates on the terms and conditions set forth below. This Confirmation will be governed by and construed in accordance with the laws of the State of New York, without reference to choice of law doctrine. The parties hereto irrevocably submit to the non-exclusive jurisdiction of the courts of the State of New York and the United States Court for the Southern District of New York in connection with all matters relating hereto, and waive any objection to the laying of venue in, and any claim of inconvenient forum with respect to, these courts. The terms of the Option to which this Confirmation relates are as follows: General Terms: Effective Date: November 16, 1995 Trade Date: November 16, 1995 Option Style: American Option Type: Call Seller: Ardsley Institutional Fund, L.P. Buyer: Whelan Management Corp. Underlying Stock: Tesoro Petroleum Corporation Common Stock
17 Number of Shares: 50,000 Number of Option Units: 500 Strike Price: USD $8.25 per share Premium: USD $4,500.00 payable as per "Appendix B" which follows. Premium Payment Date: November 22, 1995 Business Day: Any day (i) on which commercial banks are open for business (including dealings in foreign exchange and foreign currency deposits) in New York and (ii) which is a scheduled trading day on the New York Stock Exchange, the Chicago Board Options Exchange and the Chicago Mercantile Exchange, other than a day on which trading on any such exchange is scheduled to close prior to its regular weekday closing time. Exchanges: New York Stock Exchange, American Stock Exchange and NASDAQ. Calculating Agent: A third party acceptable to Buyer and Seller, whose determinations and calculations shall be binding in the absence of manifest error. Procedure for Exercise: Exercise Notice: In order to exercise all or part of the Option, an Exercise Notice in the form set forth below as appendix "A" shall be sent by facsimile transmission, telex, hand or overnight delivery to the Seller. The seller will then sign, date and time the Exercise Notice and return it to the Buyer to confirm the Exercise. Exercise Period: Any Business Day up to and including the Expiration Date between 9:00 am and 4:15 p.m. local time in New York.
18 Expiration Date: May 16, 1996 or, if that date is not a Business Day, the first following day that is a Business Day. Partial Exercise: Allowed. After the Exercise Period, any unexercised Option Units will be deemed expired worthless and no longer subject to the terms of this Confirmation. If only a part of the Option is exercised, the seller's confirmation(s) of the Exercise Notice will include a "Remaining Number or Shares". This quantity shall be considered to be the new Number of Shares for the Option until the next Partial Exercise or the Expiration Date, whichever comes first. Any confirmed Exercise Notice for partial exercises will become an addendum to the Confirmation to support changes to the Number of Shares. Sellers' Telephone and Facsimile Number Telephone: 203-629-0661 for the purpose of Giving Notice: Facsimile: 203-629-0661 Market Disruption Event: The occurrence or existence on any Business Day during the one-half hour period that ends at the close of trading on the Exchange on any Business Day of any suspension of or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant exchange or otherwise) on (i) the Exchange in the Underlying Stock or (ii) in options contracts on the Underlying Stock, if, in the determination of the Calculation Agent, such suspension or limitation is material. The Calculation Agent shall as soon as reasonably practicable under the circumstances notify the other party of the existence or occurrence of a Market Disruption Event for the purpose of addressing and or recomputing any necessary adjustments to the Underlying Stock.
19 Adjustments to The Option: During the life of the Option, if any adjustment is made by The Options Clearing Corporation or its successors ("OCC") in the terms of the outstanding OCC-issued options ("OCC Options") on the Underlying Stock, an equivalent adjustment shall be made in the terms of the Option. If any time during the life of the Option there shall be no outstanding OCC Options on the Underlying Stock, and an event shall occur for which an adjustment might otherwise be made under the By-Laws, Rules, and stated policies of OCC applicable to the adjustment of OCC Options (the "OCC Adjustment Rules"), then adjustment shall be made in the terms of the Option applying the principles set forth in the OCC Adjustment Rules. In addition to the foregoing sentence, adjustment shall also be made (by applying the principles set forth in the OCC Adjustment Rules) in the terms of the Option for any and all cash dividends, stock dividends, stock distributions and stock splits on the Underlying Stock, and distributions of property other than additional Underlying Stock during the life of the Option, regardless of the size or amount thereof and regardless of whether adjustment is made by OCC in respect thereof. Settlement Terms: Physical Delivery: The share quantity of (Number of Option Units Exercised * 100) will be delivered via the Depository Trust Co. to the custodian or custodians to be named by the Buyer. Physical Delivery Date: 3 Business Days after Valuation Date.
Default: If the Buyer fails to make, when due, any payment or delivery required to be made by it under this Confirmation or under any other transaction with the Seller within five Business Days (or such shorter grace period provided in such other transaction) of notice of such failure being given to the Buyer, the Seller may, by notice to the Buyer, terminate the Option evidenced by this Confirmation. Counterparty Representation: Counterparty hereby represents that it has entered into this contract in order to offset in whole or in part earnings it expects from assets it has acquired or anticipates acquiring or liabilities it has incurred or anticipates incurring. 20 Transfer: This Transaction may be assigned or transferred by either party, the transferring party having given three (3) day's prior notice of such transfer or assignment. Please confirm your acceptance and agreement with the foregoing by immediately executing the copy of this Confirmation enclosed for that purpose and returning it to: Yours sincerely, By: Ardsley Partners By: /s/ Kevin M. McCormack ---------------------------- Name: Kevin M. McCormack Title: Partner Accepted and agreed as of the date first above written: By: WHELAN MANAGEMENT CORP. By: /s/ Kevin S. Flannery ------------------------- Name: Kevin S. Flannery Title: President -----END PRIVACY-ENHANCED MESSAGE-----