EXHIBIT 4.1
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
AMENDMENT NO. 1 TO RIGHTS AGREEMENT, dated as of March 27, 2002 (the
"Amendment"), by and between PENN VIRGINIA CORPORATION, a Virginia corporation
(the "Company"), and AMERICAN STOCK TRANSFER & TRUST COMPANY, a New York
corporation (the "Rights Agent").
WHEREAS, on February 11, 1998, the Company and the Rights Agent entered
into a Rights Agreement (the "Agreement"); and
WHEREAS, pursuant to Section 27 of the Agreement, the Company has
determined to modify the terms of the Agreement in certain respects.
NOW, THEREFORE, in consideration of the promises and mutual agreements
herein set forth, and intending to be legally bound hereby, the parties hereto
agree that the Agreement shall be and hereby is amended in the following manner:
Section 1. Definitions.
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(a) The first sentence of Subsection 1(a) of the Agreement is hereby
amended and restated in its entirety to read as follows: "Acquiring Person"
shall mean (i) any Person who or which, together with all Affiliates and
Associates of such Person, shall be the Beneficial Owner of 15% or more of the
shares of Common Stock then outstanding, other than an Exempt Person (as
hereinafter defined), or (ii) an Adverse Person (as hereinafter defined).
(b) Subsection 1(c)(ii) of the Agreement is hereby amended to insert
the following at the end thereof: "and provided, further, that in no case shall
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an officer or director of the Company be deemed (x) the beneficial owner of any
securities beneficially owned by another officer or director of the Company
solely by reason of actions undertaken by such persons in their capacity as
officers or directors of the Company; or (y) the beneficial owner of securities
held of record by the trustee of any employee benefit plan of the Company or any
Subsidiary of the Company for the benefit of any employee of the Company or any
Subsidiary of the Company, other than the officer or director, by reason of any
influence that such officer or director may have over the voting of the
securities held in the plan.
(c) Section 1 of the Agreement is hereby amended to insert the
following definitions in appropriate alphabetical order, and the Subsections of
Section 1 are relettered accordingly:
(b) "Adverse Person" shall mean any Person declared by the
Board of Directors (provided that at least a majority of the members of
the Board of Directors are Continuing Directors and such declaration is
approved by a majority of such Continuing Directors) to be an Adverse
Person after (i) a determination by the Board of Directors that such
Person, together with all Affiliates and Associates of such Person, has
become the Beneficial Owner of 10% or more of the shares of Common
Stock then outstanding; and (ii) a determination by the Board of
Directors, in accordance with its good faith business judgment of the
best interests of the Company, that:
(i) such Beneficial Ownership by such Person is
intended to or is reasonably likely to either (A) cause the Company to
repurchase the Common Stock beneficially owned by such Person, or (B)
cause pressure on the Company to take action or enter into a
transaction or series of transactions that would provide such Person
with short-term financial gain or other benefits under circumstances
where the Board of Directors determines that the long-term best
interests of the Company would not be served by taking such action or
entering into such transactions or series of transactions at that time;
or
(ii) such Beneficial Ownership is causing or
reasonably likely to cause a material adverse impact (including, but
not limited to, impairment of relationships with customers or
suppliers, impairment of the Company's ability to maintain its
competitive position or impairment of the Company's ability to
implement its long-term strategic plan) on the business, financial
position or prospects of the Company or any other entity in which the
Company has a substantial economic interest;
provided, however, that the Board of Directors may not declare a Person
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to be an Adverse Person if, prior to the time that such Person acquired
10% or more of the Common Stock, such Person provided to the Board of
Directors a written statement of such Person's proposed acquisition of
such Common Stock, together with any other information reasonably
requested of such Person by the Board of Directors, and the Board of
Directors (provided, that at least a majority of the members of the
Board of Directors are Continuing Directors and such determination is
approved by a majority of such Continuing Directors), in accordance
with its good faith business judgment of the best interests of the
Company, determines to notify and notifies such Person in writing that
it will not declare such Person to be an Adverse Person; and provided,
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further, that the Board of Directors may expressly condition in any
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manner a determination not to declare a Person an Adverse Person on
such terms as the Board of Directors may specify, including, without
limitation, that such Person shall not acquire more than a specified
amount of Common Stock and/or that such Person shall not take actions
inconsistent with the purposes and intentions disclosed by such Person
in the statement provided by such Person to the Board of Directors. In
the event that the Board of Directors should at any time determine, in
accordance with its good faith business judgment of the best interests
of the Company, that such Person has not met or complied with any
condition specified by the Board of Directors, the Board of Directors
may at any time thereafter declare such Person to be an Adverse Person.
No delay or failure by the Board of Directors to declare a Person to be
an Adverse Person shall in any way waive or otherwise affect the power
of the Board of Directors subsequently to declare a Person to be an
Adverse Person.
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(c) "Adverse Change of Control" shall mean a change (resulting
from a proxy or consent solicitation) in any of the directors in office
at the commencement of such solicitation, if any Person who is or was a
participant in such solicitation has stated (or if upon the
commencement of such solicitation, a majority of the Board of Directors
of the Company has determined in good faith) that such Person (or any
of its Affiliates or Associates) has taken or intends to take, or may
consider taking, any action that would result in such Person becoming
an Acquiring Person or that would cause the occurrence of a Triggering
Event.
(i) "Continuing Director" shall mean (i) any member of the
Board of Directors of the Company who, while such Person is a member of
the Board, is not an Acquiring Person, or an Affiliate or Associate of
an Acquiring Person, or a representative of an Acquiring Person or of
any such Affiliate or Associate, and was a member of the Board prior to
the Record Date, or (ii) any Person who subsequently becomes a member
of the Board who, while such Person is a member of the Board, is not an
Acquiring Person, or an Affiliate or Associate of an Acquiring Person,
or a representative of an Acquiring Person or of any such Affiliate or
Associate, if such Person's nomination for election or election to the
Board is recommended or approved by a majority of the Continuing
Directors, provided that a majority of the Board of Directors are
Continuing Directors.
Section 2. Issue of Right Certificates. Section 3(a) of the Agreement
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is amended by deleting the first parenthetical in clause (ii) of the first
sentence thereof, and inserting in its place the following: "(or such later date
as may be determined by action of the Board of Directors prior to such time as
any Person becomes an Acquiring Person, provided that if such determination
occurs on or after the date of an Adverse Change of Control, then such date may
be extended only if a majority of the Board of Directors are Continuing
Directors and such extension is authorized by a majority of such Continuing
Directors)".
Section 3. Consolidation, Merger or Sale or Transfer of Assets or
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Earning Power. Section 13 of the Agreement is amended as follows:
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(a) Subsection 13(a) of the Agreement is hereby amended to insert the
following immediately prior to clause (x) therein: "(w) the Company shall be a
party to a statutory share exchange with any other Person (other than a
Subsidiary of the Company in a transaction that complies with Section 11(o)
hereof) after which the Company is a Subsidiary of any other Person,".
(b) Subsection 13(b)(i) of the Agreement is hereby amended to insert
"(w)," immediately prior to "(x)" therein.
Section 4. Redemption and Termination. Section 23 of the Agreement is
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amended and restated in its entirety to read as follows:
(a) The Rights may be redeemed by action of the Board of
Directors pursuant to paragraph (b) of this Section 23 and shall not be
redeemed in any other manner.
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(b) The Board of Directors of the Company may, at its option,
at any time prior to such time as any Person becomes an Acquiring
Person, redeem all but not less than all the then-outstanding Rights at
a redemption price of $.001 per Right, appropriately adjusted to
reflect any stock split, stock dividend or similar transaction
occurring after the Record Date; provided, however, that if such
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redemption takes place after an Adverse Change of Control, at least a
majority of the members of the Board of Directors must be Continuing
Directors and such redemption must be approved by a majority of such
Continuing Directors (such redemption price being hereinafter referred
to as the "Redemption Price"). The redemption of the Rights by the
Board of Directors may be made effective at such time on such basis and
with such conditions as the Board of Directors in its sole discretion
may establish. The Company may, at its option, pay the Redemption Price
in cash, shares of Common Stock (based on the current market price per
share at the time of redemption) or any other form of consideration
deemed appropriate by the Board of Directors. Notwithstanding the
foregoing, in the event payment of the Redemption Price to a holder of
Rights would result in the Payment of an amount not equal to $.01 or an
integral multiple of $.01, the amount to be paid shall be rounded
upward to the next $.01.
(c) Immediately upon the action of the Board of Directors of
the Company ordering the redemption of the Rights pursuant to paragraph
(b) of this Section 23 and without any further action and without any
notice, the right to exercise the Rights will terminate and the only
right thereafter of the holders of Rights shall be to receive the
Redemption Price. The Company shall promptly give public notice of any
such redemption; provided, however, that the failure to give, or any
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defect in, any such notice shall not affect the validity of such
redemption. Within 10 days after such action of the Board of Directors
ordering the redemption of the Rights pursuant to paragraph (b), the
Company shall mail a notice of redemption to all the holders of the
then outstanding Rights at their last addresses as they appear upon the
registry books of the Rights Agent or, subject to Section 7(e), prior
to the Distribution Date, on the registry books of the transfer agent
for the shares of Common Stock. Any notice which is mailed in the
manner herein provided shall be deemed given, whether or not the holder
receives the notice. Each such notice of redemption will state the
method by which the payment of the Redemption Price will be made. The
Company shall not, and shall not cause any of its Affiliates or
Associates to, redeem, acquire or purchase for value any Rights at any
time in any manner other than that specifically set forth in this
Section 23 or in Section 24 hereof, and other than in connection with
the purchase of shares of Common Stock prior to the Distribution Date.
Section 5. Exchange. Section 24(a) of the Agreement is amended by
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deleting the first parenthetical therein, and inserting in its place the
following: "(provided that at least a majority of the members of the Board of
Directors are Continuing Directors and such exchange is authorized by a majority
of such Continuing Directors)".
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Section 6. Supplements and Amendments. Section 27 of the Agreement is
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amended and restated in its entirety to read as follows:
The Company may from time to time supplement or amend this Agreement
without the approval of any holders of Rights Certificates in order to
cure any ambiguity, to correct or supplement any provision contained
herein which may be defective or inconsistent with any other provisions
herein, or to make any other provisions with respect to the Rights
which the Company may deem necessary or desirable, any such supplement
or amendment to be evidenced by a writing signed by the Company and the
Rights Agent; provided, however, that if such supplement or amendment
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takes place after an Adverse Change of Control, at least a majority of
the members of the Board of Directors must be Continuing Directors and
such amendment or supplement must be approved by a majority of such
Continuing Directors; and provided, further, that from and after such
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time as any Person becomes an Acquiring Person, this Agreement shall
not be amended in any manner which would adversely affect the interests
of the holders of Rights (other than an Acquiring Person, or an
Affiliate or Associate of any such Acquiring Person). Upon the delivery
of a certificate from (i) an officer of the Company or, (ii) so long as
any Person is an Acquiring Person or after an Adverse Change of
Control, a majority of the Continuing Directors (provided that at least
a majority of the members of the Board of Directors are Continuing
Directors) stating that the proposed supplement or amendment is in
compliance with the terms of this Section 27, the Rights Agent shall
execute such supplement or amendment. Notwithstanding anything
contained in this Agreement to the contrary, no supplement or amendment
shall be made that changes the Redemption Price, accelerates the Final
Expiration Date, changes the Purchase Price, or changes the number of
one one-thousandths of a share of Preferred Stock for which a Right is
exercisable. Prior to the Distribution Date, the interests of the
holders of Rights shall be deemed coincident with the interests of the
holders of shares of Common Stock.
Section 7. Determinations and Actions by the Board of Directors.
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Section 29 of the Agreement is amended by deleting the last sentence thereof and
replacing it with the following:
In accordance with Section 13.1-646 of the Virginia Stock Corporation
Act (the "VSCA"), any action or determination by the Board of Directors
with respect to the issuance, terms, conditions or redemption of the
Rights shall be subject to the provisions of Section 13.1-690 of the
VSCA and shall be valid if taken or determined in compliance therewith.
Without limiting the foregoing, all such actions, calculations,
interpretations and determinations (including, for purposes of clause
(y) below, all omissions with respect to the foregoing) which are done
or made by the Board of Directors of the Company (with, where
specifically provided for herein, the concurrence of that number of
Continuing Directors as provided herein) in accordance with the
statutory standard of conduct for Directors set forth in Section
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13.1-690 of the VSCA, shall (x) be final, conclusive and binding on the
Company, the Rights Agent, the holders of the Rights and all other
parties and (y) not subject the Board or the Continuing Directors to
any liability to the holders of the Rights.
Section 8. Amendment of Summary of Rights to Purchase Preferred Stock.
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(a) The second paragraph of Exhibit C to the Agreement is hereby
amended and restated in its entirety to read as follows:
Initially, the Rights will be evidenced by the certificates
representing shares of Common Stock then outstanding, and no separate
Right Certificates will be distributed. The Rights will separate from
the Common Stock and become exercisable upon the earlier of (1) ten
calendar days following the Stock Acquisition Date, defined as the
first date of a public announcement that a Person or group of
affiliated or associated Persons has become an Acquiring Person (as
defined below) or (2) ten business days (or such later date as may be
determined by action of the Board of Directors prior to such time as
any Person becomes an Acquiring Person or, if there has been an Adverse
Change of Control, by a majority of the Continuing Directors (provided
that a majority of the Board of Directors are Continuing Directors))
after the commencement of, or first public announcement of an intention
to commence, a tender offer or exchange offer that would result in a
Person or group beneficially owning 15% or more of such outstanding
shares of Common Stock (the earlier of such dates being called the
"Distribution Date").
With certain exceptions described in the Rights Agreement, a
Person or group becomes an Acquiring Person when such Person or group
acquires or obtains the right to acquire beneficial ownership of 15% or
more of the then-outstanding shares of the Common Stock, or 10% or more
of such shares if the Company's Board of Directors, in accordance with
its good faith business judgment of the best interests of the Company,
declares the acquiring Person an Adverse Person under guidelines set
forth in the Rights Agreement. The Board of Directors may declare any
Person to be an Adverse Person after it determines (i) that such
Person, together with all affiliates and associates of such Person, has
become the beneficial owner of 10% or more of the Company's Common
Stock, and (ii) in accordance with its good faith business judgment of
the best interests of the Company, that such Person's ownership in the
Company (a) is reasonably likely to cause the Company to repurchase the
Common Stock owned by such Person or cause the Company to take action
that would provide such Person with short-term gain to the detriment of
the long-term interests of the Company, or (b) is causing or reasonably
likely to cause a material adverse impact on the business, financial
position or prospects of the Company or any other entity in which the
Company has a substantial economic interest.
(b) The seventh paragraph of Exhibit C to the Agreement is hereby
amended and restated in its entirety to read as follows:
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After the Stock Acquisition Date, in the event that (i) the
Company consolidates or merges with any other person, and the Company
is not the surviving corporation, (ii) any person engages in a share
exchange, consolidation or merger with the Company where the
outstanding shares of Common Stock of the Company are exchanged for
securities, cash or property of the other person and the Company is the
surviving corporation, (iii) the Company is a party to a statutory
share exchange with any other person after which the Company is a
subsidiary of any other person or (iv) 50% or more of the Company's
assets or earning power is sold or transferred, proper provision will
be made so that each holder of a Right shall thereafter have the right
to receive, upon exercise, common stock of the acquiring company having
a value equal to two times the Purchase Price of the Right. The events
set forth in this paragraph and the preceding paragraph are referred to
as the "Triggering Events."
(c) The ninth paragraph of Exhibit C to the Agreement is hereby amended
and restated in its entirety to read as follows:
At any time prior to the time at which there is an Acquiring
Person, the Board of Directors of the Company may redeem the Rights in
whole, but not in part, at a price of $.001 per Right; provided,
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however, that if such redemption takes place after an Adverse Change of
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Control, at least a majority of the members of the Board of Directors
must be Continuing Directors and such redemption must be approved by a
majority of such Continuing Directors (the "Redemption Price"). The
redemption of the Rights may be made effective at such time, on such
basis, and with such conditions as the Board of Directors in its sole
discretion may establish. Immediately upon the action of the Board of
Directors of the Company ordering the redemption of the Rights, the
right to exercise the Rights will terminate and the only right of the
holders of Rights will be to receive the Redemption Price.
(d) The last line of the tenth paragraph of Exhibit C to the Agreement
is hereby amended to delete and replace the word "two" with the words "a
majority."
(e) The eleventh paragraph of Exhibit C to the Agreement is hereby
amended by deleting the second parenthetical therein and inserting in its place
the following: "(provided that at least a majority of the members of the Board
of Directors are Continuing Directors and such exchange is authorized by a
majority of such Continuing Directors)."
(f) The thirteenth paragraph of Exhibit C to the Agreement is hereby
amended and restated in its entirety to read as follows:
The terms of the Rights may be amended by the Board of
Directors of the Company without the consent of the holders of the
Rights; provided, however, that if such amendment takes place after an
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Adverse Change of Control, at least a majority of the members of the
Board of Directors must be Continuing Directors and such amendment must
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be approved by a majority of such Continuing Directors; and provided,
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further, that from and after such time as any Person becomes an
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Acquiring Person, the Rights Agreement may not be amended in any manner
which would adversely affect the interests of holders of the Rights
(other than an Acquiring Person).
Section 9. "Agreement" as Amended. The term "Agreement" as used in the
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Agreement shall be deemed to refer to the Agreement as amended hereby, and all
references to the Agreement shall be deemed to include this Amendment.
Section 10. Effectiveness. This Amendment shall be effective as of the
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date first written above and, except as set forth herein, the Agreement shall
remain in full force and effect and otherwise shall be unaffected hereby.
Section 11. Counterparts. This Amendment may be executed in two or more
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counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and attested as of the date first written above.
PENN VIRGINIA CORPORATION
By: /s/ Nancy M. Snyder
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Name: Nancy M. Snyder
Title: Vice President, General Counsel
and Corporate Secretary
AMERICAN STOCK TRANSFER & TRUST COMPANY
By: /s/ Herbert J. Lemmer
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Name: Herbert J. Lemmer
Title: Vice President
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