Form 8-K Bylaws May 22
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
___________
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of
1934
Date
of
Report (Date of earliest event reported): May
22, 2006
___________
LANDAMERICA
FINANCIAL GROUP, INC.
(Exact
name of registrant as specified in its charter)
|
Virginia
(State
or other jurisdiction
of
incorporation)
|
1-13990
(Commission
File
Number)
|
54-1589611
(I.R.S.
Employer
Identification
No.)
|
|
101
Gateway Centre Parkway
Richmond,
Virginia
(Address
of principal executive offices)
|
23235-5153
(Zip
Code)
|
Registrant’s
telephone number, including area code: (804)
267-8000
Not
Applicable
(Former
name or former address, if changed since last report)
Check
the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
o Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
o Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
o Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item
5.03 Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal Year.
LandAmerica
Financial Group, Inc., a Virginia corporation (the “Company”), has amended and
restated its Articles of Incorporation. At the Annual Meeting of Shareholders
of
the Company held on May 16, 2006, the shareholders approved two amendments
to
the Company’s Articles of Incorporation, as described in the Company’s Proxy
Statement dated April 5, 2006 relating to the Annual Meeting (the “Proxy
Statement”), with one amendment revising the Article pertaining to directors and
the other amendment revising the Article pertaining to indemnification. The
amendment to the Article pertaining to directors deletes the names of initial
directors, many of whom are no longer affiliated with the Company, deletes
specific year references to the classes of directors and refers to the classes
in a generic manner, clarifies that shareholders are eligible to vote on a
director appointed to fill a vacancy at the next annual meeting of shareholders
and deletes the supermajority requirement applicable to any changes to the
Article. The amendment to the Article pertaining to indemnification rewrites
the
article for consistency with the 2005 changes to the Virginia Stock Corporation
Act.
Previously,
the Board of Directors of the Company, at a meeting on February 23, 2006,
approved certain other amendments to the Articles of Incorporation not requiring
shareholder approval. Those amendments delete the name and address of the
Company’s initial registered agent, given that the registered agent of the
Company has since changed and is on file with the Virginia State Corporation
Commission and delete the Company’s 7% Series B Cumulative Convertible Preferred
Stock designation, given that there were no shares of such preferred stock
designation issued and outstanding.
All
amendments were submitted to the Virginia State Corporation Commission in the
form of Articles of Restatement and Certification of LandAmerica Financial
Group, Inc. with the Amended and Restated Articles of Incorporation attached
as
an Exhibit on May 19, 2006 and such amendments became effective on May 22,
2006.
A copy of the Amended and Restated Articles of Incorporation of LandAmerica
Financial Group, Inc. reflecting the amendments described above, as filed with
the Virginia State Corporation Commission, is being filed herewith as Exhibit
4.1 and is incorporated into this Item 5.03 by reference.
Item
8.01. Other
Events.
The
following description of the capital stock of the Company is qualified in its
entirety by reference to applicable provisions of Virginia law and the Company’s
Amended and Restated Articles of Incorporation (the “Charter”) and its Bylaws,
as amended and restated, the complete texts of which are filed or incorporated
by reference as exhibits to this report.
Common
Stock
The
Company’s authorized capital stock consists of 5,000,000 shares of preferred
stock, without par value (the “Preferred Stock”), and 45,000,000 shares of
common stock, without par value (the “Common Stock”).
The
holders of Common Stock are entitled to one vote for each share on all matters
voted on by shareholders, including elections of directors, and, except as
otherwise required by law or provided in any resolution adopted by the Board
of
Directors with respect to any series of Preferred Stock, the holders of such
shares exclusively possess all voting power. The Company’s Charter does not
provide for cumulative voting in the election of directors. Subject to any
preferential rights of any outstanding series of Preferred Stock created by
the
Board of Directors from time to time, the holders of Common Stock are entitled
to such dividends as may be declared from time to time by the Board of Directors
from funds available therefor, and upon liquidation are entitled to receive
pro
rata all assets of the Company available for distribution to such
holders.
Preferred
Stock
Under
the
Company’s Charter, the Board of Directors, without shareholder approval, is
authorized to issue shares of Preferred Stock in one or more series and to
designate, with respect to each such series of Preferred Stock, the number
of
shares in each such series, the dividend rates, preferences and date of
pay-ment, voluntary and involuntary liquidation preferences, the availability
of
redemption and the prices at which it may occur, whether or not dividends shall
be cumulative and, if cumulative, the date or dates from which the same shall
be
cumulative, the sinking fund provisions, if any, for redemption or purchase
of
shares, the rights, if any, and the terms and conditions on which shares can
be
converted into or exchanged for shares of any other class or series, and the
voting rights, if any. Any Preferred Stock issued may be senior to the Common
Stock as to dividends and as to distribution in the event of liquidation,
dissolution or winding up of the Company. The ability of the Board of Directors
to issue Preferred Stock, while providing flexibility in connection with
possible acquisitions and other corporate purposes, could, among other things,
adversely affect the voting power of holders of Common Stock.
The
Board
of Directors has authorized and reserved 200,000 shares of Series A Junior
Participating Preferred Stock, without par value (the “Series A Preferred
Stock”), for issuance upon the exercise of the preferred share purchase rights
(the “Rights”) described below. See “Preferred Share Purchase Rights.” The
creation and issuance of any other series of Preferred Stock, and the relative
rights and preferences of such series, if and when established, will depend
upon, among other things, the future capital needs of the Company, then-existing
market conditions and other factors that, in the judgment of the Board of
Directors, might warrant the issuance of Preferred Stock.
Preemptive
Rights
No
holder
of any share of Common Stock or Preferred Stock has any preemptive right to
subscribe to any securities of the Company of any kind or class.
Preferred
Share Purchase Rights
Each
outstanding share of Common Stock (a “Common Share”) has associated with it one
Right. Each Right entitles the registered holder to purchase from the Company
one one-hundredth of a share of Series A Preferred Stock (a “Series A Preferred
Share”) at a price of $85 (the “Purchase Price”) per one one-hundredth of a
Series A Preferred Share, subject to adjustment. The terms of the Rights are
set
forth in the Amended and Restated Rights Agreement, dated August 20, 1997 (the
“Amended and Restated Rights Agreement”), between the Company and Wachovia Bank,
N.A., as Rights Agent (“Wachovia”), as amended by the First Amendment to Amended
and Restated Rights Agreement, dated December 11, 1997, between the Company
and
Wachovia (the “First Amendment”), and the Second Amendment to Amended and
Restated Rights Agreement, dated June 1, 1999, between the Company, Wachovia
and
State Street Bank and Trust Company, as successor Rights Agent (“State Street”)
(the “Second Amendment”), and the Third Amendment to Amended and Restated Rights
Agreement, dated July 26, 2000, between the Company and State Street (the “Third
Amendment” and, together with the Amended and Restated Rights Agreement, the
First Amendment and the Second Amendment, the “Rights Agreement”).
The
Rights will be evidenced by Common Share certificates until the earlier to
occur
of (i) 10 days following a public announcement that a person or group of
affiliated or associated persons have acquired beneficial ownership of 20%
or
more of the outstanding Common Shares (an “Acquiring Person”) or (ii) 10
business days (or such later date as may be determined by action of the Board
of
Directors prior to such time as any person or group of affiliated or associated
persons becomes an Acquiring Person) following the commencement of, or
announcement of an intention to make, a tender offer or exchange offer the
consummation of which would result in the beneficial ownership by a person
or
group of 20% or more of the outstanding Common Shares (the earlier of such
dates
being called the “Distribution Date”).
The
Rights Agreement provides that, until the Distribution Date (or earlier
redemption or expiration of the Rights), the Rights will be transferable with
and only with the Common Shares. Until the Distribution Date (or earlier
redemption or expiration of the Rights), new Common Share certificates issued
after August 20, 1997 upon transfer or new issuance of Common Shares will
contain a legend incorporating by reference the terms of the Rights Agreement
(as such may be amended from time to time). Notwithstanding the absence of
the
aforementioned legend or the existence of an earlier form of legend,
certificates evidencing Common Shares outstanding on or prior to August 20,
1997
shall also evidence one Right for each Common Share evidenced thereby. Until
the
Distribution Date (or earlier redemption or expiration of the Rights), the
surrender for transfer of any certificates for Common Shares outstanding as
of
August 20, 1997, even without such legend, will also constitute the transfer
of
the Rights associated with the Common Shares represented by such certificate.
As
soon as practicable following the Distribution Date, separate certificates
evidencing the Rights (“Right Certificates”) will be mailed to holders of record
of the Common Shares as of the close of business on the Distribution Date and
such separate Right Certificates alone will evidence the Rights.
The
Rights are not exercisable until the Distribution Date. The Rights will expire
on August 20, 2007 (the “Final Expiration Date”), unless the Final Expiration
Date is extended or unless the Rights are earlier redeemed or exchanged by
the
Company, in each case, as described below.
The
Purchase Price payable, and the number of Series A Preferred Shares or other
securities or property issuable, upon exercise of the Rights are subject to
adjustment from time to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or reclassification of, the Series
A
Preferred Shares, (ii) upon the grant to holders of the Series A Preferred
Shares of certain rights or warrants to subscribe for or purchase Series A
Preferred Shares at a price, or securities convertible into Series A Preferred
Shares with a conversion price, less than the then-current market price of
the
Series A Preferred Shares or (iii) upon the distribution to holders of the
Series A Preferred Shares of evidences of indebtedness or assets (excluding
regular periodic cash dividends paid out of earnings or retained earnings or
dividends payable in Series A Preferred Shares) or of subscription rights or
warrants (other than those referred to above).
The
number of outstanding Rights and the number of one one-hundredths of a Series
A
Preferred Share issuable upon exercise of each Right are also subject to
adjustment in the event of a stock split of the Common Shares or a stock
dividend on the Common Shares payable in Common Shares or subdivisions,
consolidations or combinations of the Common Shares occurring, in any such
case,
prior to the Distribution Date.
Series
A
Preferred Shares purchasable upon exercise of the Rights will not be redeemable.
Each Series A Preferred Share will be entitled to a minimum preferential
quarterly dividend payment of $1 per share but will be entitled to an aggregate
dividend equal to 100 times the dividend declared per Common Share. In the
event
of liquidation, the holders of the Series A Preferred Shares will be entitled
to
a minimum preferential liquidation payment of $100 per share but will be
entitled to an aggregate payment equal to 100 times the payment made per Common
Share. Each Series A Preferred Share will have 100 votes, voting together with
the Common Shares. Finally, in the event of any merger, consolidation or other
transaction in which Common Shares are exchanged, each Series A Preferred Share
will be entitled to receive an amount equal to 100 times the amount received
per
Common Share. These rights are protected by customary antidilution
provisions.
Because
of the nature of the Series A Preferred Shares’ dividend, liquidation and voting
rights, the value of the one one-hundredth interest in a Series A Preferred
Share purchasable upon exercise of each Right should approximate the value
of
one Common Share.
In
the
event that the Company is acquired in a merger or other business combination
transaction or 50% or more of its consolidated assets or earning power are
sold
after a person or group has become an Acquiring Person, proper provision shall
be made so that each holder of a Right will thereafter have the right to
receive, upon the exercise thereof at the then current exercise price of the
Right, that number of shares of common stock of the acquiring company that
at
the time of such transaction will have a market value of two times the exercise
price of the Right.
In
the
event that any person or group of affiliated or associated persons becomes
an
Acquiring Person, proper provision shall be made so that each holder of a Right,
other than Rights beneficially owned by the Acquiring Person (which will
thereafter be void), will thereafter have the right to receive, upon the
exercise thereof at the then current exercise price of the Right, that number
of
Common Shares having a market value of two times the exercise price of the
Right.
At
any
time after any person or group of affiliated or associated persons becomes
an
Acquiring Person and prior to the acquisition by such person or group of 50%
or
more of the outstanding Common Shares, the Board of Directors of the Company
may
exchange the Rights (other than Rights owned by such person or group, that
will
have become void), in whole or in part, at an exchange ratio of one Common
Share, or one one-hundredth of a Series A Preferred Share, per Right (subject
to
adjustment).
With
certain exceptions, no adjustment in the Purchase Price will be required until
cumulative adjustments require an adjustment of at least 1% in such Purchase
Price. No fractional Series A Preferred Shares will be issued (other than
fractions that are integral multiples of one one-hundredth of a Series A
Preferred Share, which may, at the election of the Company, be evidenced by
depository receipts), and in lieu thereof an adjustment in cash will be made
based on the market price of the Series A Preferred Shares on the last trading
day prior to the date of exercise.
At
any
time prior to the time that any person or group becomes an Acquiring Person,
the
Board of Directors of the Company may redeem the Rights in whole, but not in
part, at a price of $.01 per Right (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 any 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.
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, except that from and after such time
as any person or group of affiliated or associated persons becomes an Acquiring
Person, the Rights Agreement provides that no such amendment may adversely
affect the interests of the holders of the Rights.
Until
a
Right is exercised, the holder thereof, as such, will have no rights as a
shareholder of the Company, including, without limitation, the right to vote
or
to receive dividends.
The
foregoing summary of certain terms of the Rights is qualified in its entirety
by
reference to the Amended and Restated Rights Agreement, the First Amendment,
the
Second Amendment and the Third Amendment, copies of which have been filed with
the Commission.
Certain
Provisions of the Company’s Charter and Bylaws
The
Company’s Charter and Bylaws contain provisions which may have the effect of
delaying or preventing a change in control of the Company. The Company’s Charter
and Bylaws provide: (i) for division of the Board of Directors into three
classes, with one class elected each year to serve a three-year term; (ii)
that
directors may be removed only for cause and only upon the affirmative vote
of
the holders of at least 80% of the outstanding shares entitled to vote; and
(iii) that a vacancy on the Board of Directors shall be filled by the remaining
directors. In addition, the Charter provides that the holders of capital stock
of the Company may alter, amend or repeal provisions of the Bylaws only upon
the
affirmative vote of the holders of at least 80% of the outstanding shares
entitled to vote on the matter. The Company’s Bylaws require advance
notification for a shareholder to bring business before a shareholders’ meeting
or to nominate a person for election as a director. The Company’s Charter and
Bylaws provide that, subject to the rights of holders of any series of Preferred
Stock, special meetings of shareholders may be called only by the Chairman
of
the Board or a majority of the total number of directors which the Board of
Directors would have if there were no vacancies, and may not be called by the
shareholders. The business permitted to be conducted at any special meeting
of
shareholders is limited to the business brought before the meeting by or at
the
direction of the Board of Directors.
The
Company’s Charter also contains an “affiliated transaction provision” that
provides that, in the event that holders of Common Stock are entitled to vote
on
certain transactions, a supermajority of at least 80% of all the votes that
the
holders of Common Stock are entitled to cast thereon shall be required for
the
approval of such transactions. Such supermajority approval would be required
for
(i) a merger or consolidation involving any person or entity who directly or
indirectly owns or controls 10% or more of the voting power of the Company
(an
“Interested Shareholder”) at the record date for determining shareholders
entitled to vote and (ii) a sale, lease or exchange of substantially all of
the
Company’s assets or property to or with an Interested Shareholder, or for the
approval of a sale, lease or exchange of substantially all of the assets or
property of an Interested Shareholder to or with the Company. In addition,
the
Company’s Charter provides that the same 80% vote shall be required for the
approval of certain transactions including a reclassification of securities,
recapitalization or other transaction designed to decrease the number of holders
of Common Stock after any person or entity has become an Interested Shareholder.
Notwithstanding the foregoing, the supermajority approval requirement does
not
apply to any transaction that is approved by the Board of Directors prior to
the
time that the Interested Shareholder becomes an Interested
Shareholder.
The
shares of Common Stock and Preferred Stock authorized by the Company’s Charter
provide the Board of Directors with as much flexibility as possible in using
such shares for corporate purposes. However, these additional shares may also
be
used by the Board of Directors to deter future attempts to gain control of
the
Company. The Board of Directors has sole authority to determine the terms of
any
series of the Preferred Stock, including voting rights, conversion rates and
liquidation preferences. As a result of the ability to fix voting rights for
a
series of Preferred Stock, the Board of Directors has the power to issue a
series of Preferred Stock to persons friendly to management in order to attempt
to block a post-tender offer merger or other transaction by which a third party
seeks a change in control of the Company.
The
foregoing provisions of the Company’s Charter and Bylaws are intended to prevent
inequitable shareholder treatment in a two-tier takeover and to reduce the
possibility that a third party could effect a sudden or surprise change in
majority control of the Board of Directors without the support of the incumbent
Board of Directors, even if such a change were desired by, or would be
beneficial to, a majority of the Company’s shareholders. Such provisions
therefore may have the effect of discouraging certain unsolicited offers for
the
Company’s capital stock.
Affiliated
Transactions
Article
14 of Chapter 9 of Title 13.1 of the Code of Virginia contains provisions
governing “Affiliated Transactions.” Affiliated Transactions include certain
mergers and share exchanges, material dispositions of corporate assets not
in
the ordinary course of business, any dissolution of the corporation proposed
by
or on behalf of an “Interested Stockholder” (as defined below), or
reclassifications, including reverse stock splits, recapitalizations or mergers
of the corporation with its subsidiaries which have the effect of increasing
the
percentage of voting shares beneficially owned by an Interested Stockholder
by
more than 5%. For purposes of the Act, an “Interested Stockholder” is defined as
any beneficial owner of more than 10% of any class of the voting securities
of a
Virginia corporation.
Subject
to certain exceptions discussed below, the provisions governing Affiliated
Transactions require that, for three years following the date upon which any
stockholder becomes an Interested Stockholder, a Virginia corporation cannot
engage in an Affiliated Transaction with such Interested Stockholder. This
prohibition is subject to the approval of the Affiliated Transaction by the
affirmative vote of the holders of two-thirds of the voting shares of the
corporation, other than the shares beneficially owned by the Interested
Stockholder, and by a majority (but not less than two) of the “Disinterested
Directors.” A Disinterested Director means, with respect to a particular
Interested Stockholder, a member of a corporation’s board of directors who (i)
was a member before the later of January 1, 1988 and the date on which an
Interested Stockholder became an Interested Stockholder and (ii) was recommended
for election by, or was elected to fill a vacancy and received the affirmative
vote of, a majority of the Disinterested Directors then on the board. At the
expiration of the three-year period, these provisions require approval of
Affiliated Transactions by the affirmative vote of the holders of two-thirds
of
the voting shares of the corporation, other than those beneficially owned by
the
Interested Stockholder.
The
principal exceptions to the special voting requirement apply to Affiliated
Transactions occurring after the three-year period has expired and require
either that the transaction be approved by a majority of the Disinterested
Directors or that the transaction satisfy certain fair price requirements of
the
statute. In general, the fair price requirements provide that the stockholders
must receive the highest per share price for their shares as was paid by the
Interested Stockholder for his shares or the fair market value of their shares,
whichever is higher. They also require that, during the three years preceding
the announcement of the proposed Affiliated Transaction, all required dividends
have been paid and no special financial accommodations have been accorded the
Interested Stockholder unless approved by a majority of the Disinterested
Directors.
None
of
the foregoing limitations and special voting requirements applies to an
Affiliated Transaction with an Interested Stockholder whose acquisition of
shares making such person an Interested Stockholder was approved by a majority
of the corporation’s Disinterested Directors. These provisions were designed to
deter certain takeovers of Virginia corporations. In addition, the statute
provides that, by affirmative vote of a majority of the voting shares other
than
shares owned by any Interested Stockholder, a corporation may adopt, by meeting
certain voting requirements, an amendment to its articles of incorporation
or
bylaws providing that the Affiliated Transactions provisions shall not apply
to
the corporation. The Company has not adopted such an amendment.
Control
Share Acquisitions
The
Virginia Stock Corporation Act also contains provisions regulating certain
“control share acquisitions,” which are transactions causing the voting strength
of any person acquiring beneficial ownership of shares of a public corporation
in Virginia to meet or exceed certain threshold percentages (20%, 33 ⅓% or 50%)
of the total votes entitled to be cast for the election of directors. Shares
acquired in a control share acquisition have no voting rights unless: (i) the
voting rights are granted by a majority vote of all outstanding shares other
than those held by the acquiring person or any officer or employee director
of
the corporation, or (ii) the articles of incorporation or bylaws of the
corporation provide that these Virginia law provisions do not apply to
acquisitions of its shares. The acquiring person may require that a special
meeting of the stockholders be held to consider the grant of voting rights
to
the shares acquired in the control share acquisition. The Company’s Charter
makes these provisions inapplicable to acquisitions of its shares.
Item
9.01. Financial
Statements and Exhibits.
(d) Exhibits
Number Description
| |
4.1
|
Amended
and Restated Articles of Incorporation of LandAmerica Financial Group,
Inc.*
|
| |
4.2
|
Bylaws
of LandAmerica Financial Group, Inc. (amended and restated October
26,
2005), incorporated by reference to Exhibit 3.1 to the Company’s Current
Report on Form 8-K, dated October 26, 2005, File No.
1-13990.
|
| |
4.3
|
Amended
and Restated Rights Agreement, dated as of August 20, 1997, between
the
Company and Wachovia Bank, N.A., as Rights Agent, which Amended and
Restated Rights Agreement includes an amended Form of Rights Certificate,
incorporated by reference to Exhibit 4.1 of the Company’s Current Report
on Form 8-K, dated August 20, 1997, File No.
1-13990.
|
| |
4.4
|
First
Amendment to Amended and Restated Rights Agreement, dated as of December
11, 1997, between the Company and Wachovia Bank, N.A., as Rights
Agent,
incorporated by reference to Exhibit 4.1 of the Company’s Current Report
on Form 8-K, dated December 11, 1997, File No.
1-13990.
|
| |
4.5
|
Second
Amendment to Amended and Restated Rights Agreement, dated as of June
1,
1999, between the Company, Wachovia Bank, N.A., as Rights Agent,
and State
Street Bank and Trust Company, as Successor Rights Agent, incorporated
by
reference to Exhibit 4.1 of the Company’s Current Report on Form 8-K,
dated June 1, 1999, File No.
1-13990.
|
| |
4.6
|
Third
Amendment to Amended and Restated Rights Agreement, dated as of July
26,
2000, between the Company and State Street Bank and Trust Company,
as
Rights Agent, incorporated by reference to Exhibit 4.1 of the Company’s
Current Report on Form 8-K, dated July 26, 2000, File No.
1-13990.
|
| |
4.7
|
Form
of Common Stock Certificate, incorporated by reference to Exhibit
4.5 of
the Company’s Annual Report on Form 10-K for the fiscal year ended
December 31, 2005, File No.
1-13990.
|
_____________
*
Filed
herewith.
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, as amended, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
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|
LANDAMERICA
FINANCIAL GROUP, INC.
|
| |
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(Registrant)
|
|
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Date: May
24, 2006
|
|
By:
|
/s/
Christine R. Vlahcevic
|
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Christine
R. Vlahcevic
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Senior
Vice President & Corporate
Controller
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EXHIBIT INDEX
Exhibit
No. Description
4.1 Amended
and Restated Articles of Incorporation