EXHIBIT 4
AMENDMENT dated as of July 31, 1997, to the Amended and Restated
Rights Agreement dated as of January 19, 1996, as amended (the "Rights
Agreement"), between THE PITTSTON COMPANY (the "Company") and
BANKBOSTON, N.A., as rights agent (the "Rights Agent").
Pursuant to the terms of the Rights Agreement and in accordance with
Section 27 thereof, the following actions are hereby taken:
Section 1. Amendment to Rights Agreement. The Rights Agreement is hereby
amended as follows:
(a) Section 1(a) is hereby revised to read, in its entirety, as
follows:
"(a) "Acquiring Person" shall mean any Person who or which, alone or
together with all Affiliates and Associates of such Person, shall be
the Beneficial Owner of more than 15% of the total Voting Rights of
all the Common Shares then outstanding (provided however that such
person shall be deemed to be an Acquiring Person only on the Close of
Business on the tenth calendar day (or sooner if so determined by the
Board) following such time as the Board learns that such Person's
Beneficial Ownership exceeds 15% of the total Voting Rights of all the
Common Shares then outstanding) but shall not include (a) the Company,
any Subsidiary of the Company, any employee benefit plan of the
Company or of any of its Subsidiaries, or any Person holding Common
Shares for or pursuant to the terms of any such employee benefit plan
or (b) any such Person who has become and is such a Beneficial Owner
solely because (i) of a change in the aggregate number of Common
Shares outstanding since the last date on which such Person acquired
Beneficial Ownership of any Common Shares or (ii) it acquired such
Beneficial Ownership in the good faith belief that such acquisition
would not cause such Beneficial Ownership to exceed 15% of the total
Voting Rights of all the Common Shares then outstanding.
Notwithstanding clause (b)(ii) of the prior sentence, if any Person
that is excluded from the definition of an Acquiring Person due to
such clause (b)(ii) does not reduce its percentage of Beneficial
Ownership of Common Shares to 15% or less of the total Voting Rights
of all the Common Shares then outstanding by the Close of Business on
the fifth Business Day after notice from the Company (the date of
notice being the first day) that such Person's Beneficial Ownership of
Common Shares so exceeds 15% of such total Voting Rights, such Person
shall, at the end of such five Business Day period, become an
Acquiring Person (and such clause (b)(ii) shall no longer apply to
such Person). For purposes of this definition, the determination
whether any Person acted in "good faith" shall be conclusively
determined by the Board of Directors of the Company."
(b) Clause (i) of Section 3(a) is hereby revised to read, in its
entirety, as follows:
"such time that a Person has become an Acquiring Person or"
(c) Clause (ii) of Section 3(a) is amended by deleting the phrase "the
Close of Business on the tenth calendar day after the date of the
commencement of a tender or exchange offer by any Person (other than the
Company, any Subsidiary of the Company, any employee benefit plan of the
Company or of any of its Subsidiaries, or any Person holding Common Shares
for or pursuant to the terms of any such employee benefit plan) for Common
Shares representing 30% or more of the total Voting Rights of all the
outstanding Common Shares " and inserting in its place the following:
"on such date, if any, as may be designated by the Board of
Directors of the Company following the commencement of, or first
public disclosure of an intent to commence, a tender or exchange
offer by any Person (other than the Company, any Subsidiary of
the Company, any employee benefit plan of the Company or of any
of its Subsidiaries, or any Person holding Common Shares for or
pursuant to the terms of any such employee benefit plan) for
outstanding Common Shares, if upon consummation of such tender or
exchange offer such Person could be the Beneficial Owner of more
than 15% of the total Voting Rights of all the outstanding Common
Shares".
(d) Section 7(a) is amended by deleting the date "September 25, 1997"
and inserting the date "September 25, 2007" in its place.
(e) Section 9 is hereby amended by adding subsection (e), which reads
in its entirety as follows:
"(e) In the event that there shall not be sufficient authorized
but unissued Preferred Shares to permit the exercise or exchange
of Rights in accordance with Section 11, the Company covenants
and agrees that it will take all such action as may be necessary
to authorize additional Preferred Shares for issuance upon the
exercise or exchange of Rights pursuant to Section 11; provided,
however, that if the Company is unable to cause the authorization
of additional Preferred Shares, then the Company shall, or in
lieu of seeking any such authorization, the Company may, to the
extent necessary and permitted by applicable law and any
agreements or instruments in effect prior to the Distribution
Date to which it is a party, (i) upon surrender of a Right, pay
cash equal to the Purchase Price in lieu of issuing Preferred
Shares and requiring payment therefor, (ii) upon due exercise of
a Right and payment of the Purchase Price for each Preferred
Share as to which such Right is exercised, issue equity
securities having a value equal to the value of the Preferred
Shares which otherwise would have been issuable pursuant to
Section 11, which value shall be determined by a nationally
recognized investment banking firm selected by the Board of
Directors of the Company or (iii) upon due exercise of a Right
and payment of the Purchase Price for each Preferred Share as to
which such Right is exercised, distribute a combination of
Preferred Shares, cash and/or other equity and/or debt securities
having an aggregate value equal to the value of the Preferred
Shares which otherwise would have been issuable pursuant to
Section 11, which value shall be determined by a nationally
recognized investment banking firm selected by the Board of
Directors of the Company. To the extent that any legal or
contractual restrictions (pursuant to agreements or instruments
in effect prior to the Distribution Date to which it is party)
prevent the Company from paying the full amount payable in
accordance with the foregoing sentence, the Company shall pay to
holders of the Rights as to which such payments are being made
all amounts which are not then restricted on a pro rata basis as
such payments become permissible under such legal or contractual
restrictions until such payments have been paid in full."
(f) Clause (ii) of Section 11(e) is hereby revised to read, in its
entirety, as follows:
"(ii) Upon a Person becoming an Acquiring Person (such event
being herein referred to as a "Triggering Event"), proper
provision shall be made so that each holder of a Right, except as
provided in Section 7(e), shall thereafter have a right to
receive, upon exercise thereof for the Purchase Price in
accordance with the terms of this Rights Agreement, such number
of thousandths (1/1,000s) of a Preferred Share as shall equal the
result obtained by multiplying the Purchase Price by a fraction,
the numerator of which is the number of thousandths (1/1,000s) of
a Preferred Share for which a Right is then exercisable and the
denominator of which is 50% of the Market Value of the Common
Shares on the date on which a Person becomes an Acquiring Person.
As soon as practicable after a Person becomes an Acquiring Person
(provided the Company shall not have elected to make the exchange
permitted by Section 11(e)(iii)(A) for all outstanding Rights),
the Company covenants and agrees to use its best efforts to:
(1) prepare and file a registration statement under the
Securities Act, on an appropriate form, with respect to the
Preferred Shares purchasable upon exercise of the Rights;
(2) cause such registration statement to become
effective as soon as practicable after such filing;
(3) cause such registration statement to remain
effective (with a prospectus at all times meeting the
requirements of the Securities Act) until the Expiration
Date; and
(4) qualify or register the Preferred Shares
purchasable upon exercise of the Rights under the blue sky
or securities laws of such jurisdictions as may be necessary
or appropriate.
The Company may temporarily suspend, for a period of
time not to exceed 90 calendar days after the date set forth
in the immediately preceding sentence, the exercisability of
the Rights in order to prepare and file such registration
statement and permit it to become effective. Upon any such
suspension, the Company shall issue a public announcement
stating that the exercisability of the Rights has been
temporarily suspended, as well as a public announcement at
such time as the suspension is no longer in effect."
(g) Clause (iii) of Section 11(e) is hereby changed to Clause (iv);
and Clause (iii) is hereby added to read, in its entirety, as follows:
"(iii)(A) The Board of Directors of the Company may, at its
option, at any time after a Person becomes an Acquiring Person,
mandatorily exchange all or part of the then outstanding and
exercisable Rights (which shall not include Rights that shall
have become null and void and nontransferable pursuant to the
provisions of Section 7(e)) for consideration per Right
consisting of either (x) one-half of the securities that would be
issuable at such time upon the exercise of one Right in
accordance with Section 11(a) or, if applicable, Section 9(e)(ii)
or (iii) or, (y) if applicable, the cash consideration specified
in Section 9(e)(i) (the consideration issuable per Right pursuant
to this Section 11(e)(iii)(A) being the "Exchange
Consideration"). The Board of Directors of the Company may, at
its option, issue, in substitution for Preferred Shares, Common
Shares in an amount per Preferred Share equal to the Brink's
Formula Number, the Minerals Formula Number and the Burlington
Formula Number, as the case may be (each as defined in the
Articles of Amendment) if there are sufficient authorized but
unissued Common Shares. If the Board of Directors of the Company
elects to exchange all or part of the Rights for the Exchange
Consideration pursuant to this Section 11(e)(iii)(A) prior to the
physical distribution of the Rights Certificates, the Corporation
may distribute the Exchange Consideration in lieu of distributing
Right Certificates, in which case for purposes of this Rights
Agreement holders of Rights shall be deemed to have
simultaneously received and surrendered for exchange Right
Certificates on the date of such distribution.
(B) Any action of the Board of Directors of the Company ordering
the exchange of any Rights pursuant to Section 11(e)(iii)(A)
shall be irrevocable and, immediately upon the taking of such
action and without any further action and without any notice, the
right to exercise any such Right pursuant to Section 11(e)(ii)
shall terminate and the only right thereafter of a holder of such
Right shall be to receive the Exchange Consideration in exchange
for each such Right held by such holder or, if the Exchange
Consideration shall not have been paid or issued, to exercise any
such Right pursuant to Section 13. The Company shall promptly
give public notice of any such exchange; provided, however, that
the failure to give, or any defect in, such notice shall not
affect the validity of such exchange. The Company promptly shall
mail a notice of any such exchange to all holders of such Rights
at their last addresses as they appear upon the registry books of
the Rights Agent or, prior to the Distribution Date, on the
registry books of the transfer agent for the Common Shares. 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 exchange will state the method by which the
exchange of the Rights for the Exchange Consideration will be
effected and, in the event of any partial exchange, the number of
Rights which will be exchanged. Any partial exchange shall be
effected pro rata based on the number of Rights (other than
Rights which shall have become null and void and nontransferable
pursuant to the provisions of Section 7(e)) held by each holder
of Rights."
(h) Clauses (i) and (ii) of Section 24(a) are hereby amended by
deleting Clauses (i) and (ii) and inserting "(i) such time as a Person
becomes an Acquiring Person or" in its place; Clause (iii) of Section 24(a)
is hereby changed to Clause (ii).
Section 2. Amendment to Right Certificates. The Rights Agent is hereby
directed, immediately prior to any Distribution Date, to make such amendments to
the forms of Right Certificates, attached to the Rights Agreement, to conform
with the Rights Agreement as amended by this Amendment and any subsequent
amendments.
Section 3. Full Force and Effect. Except as expressly amended hereby, the
Rights Agreement shall continue in full force and effect in accordance with the
provisions thereof on the date hereof.
Section 4. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW OF THE COMMONWEALTH OF VIRGINIA APPLICABLE TO
CONTRACTS TO BE MADE AND PERFORMED ENTIRELY WITHIN SUCH COMMONWEALTH.
Section 5. Counterparts. This Amendment may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
IN WITNESS WHEREOF, the Company and the Rights Agent have caused this
Amendment to be duly executed as of the day and year first above written.
THE PITTSTON COMPANY
By: XXXXX X. XXXXXXXX
Name: Xxxxx X. Xxxxxxxx
Title: Vice President-Corporate Finance and
Treasurer
BANKBOSTON, N.A., as Rights Agent.
By: XXXXXXX X. LEPOLLA
Name: Xxxxxxx X. Lepolla
Title: Administration Manager
