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Proc-Type: 2001,MIC-CLEAR
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UNITED STATES Virginia 0-753 23-1184320 On July 23, 2001, Registrant, through its wholly owned subsidiary, Virginia Acquisition Corp., acquired all of the outstanding stock (and options to purchase stock) of Synergy Oil & Gas, Inc., a Texas corporation ("Synergy"). Synergy was a privately owned independent exploration and production company with operations primarily in the Texas onshore Gulf Coast and West Texas areas. The acquisition was made pursuant to an Agreement and Plan of Merger among Registrant, Virginia Acquisition Corp. and Synergy. Cash consideration for the stock and options was approximately $112 million, which was funded by long-term debt. As of July 1, 2001, Synergy Oil & Gas, Inc. had net proved oil and gas reserves of 59 million cubic feet. The foregoing summary is subject to the full text of the Agreement and Plan of Merger and the press release with respect thereto, copies of which are attached hereto and incorporated hereby reference thereto. Item 7. Exhibits. (b) Pro Forma Financial Information. Financial information with respect to Synergy and pro forma financial information will be filed by amendment on or before October 5, 2001. Exhibit 10. Agreement and Plan of Merger dated June 19, 2001 which closed on July 23, 2001 (Schedules and Exhibits deleted). 1 SIGNATURES Date: August 6, 2001 Penn Virginia Corporation James O. Idiaquez By: /s/ James O. Idiaquez 2 Penn Virginia Corporation One Radnor Corporate Center, Suite 200, 100 Matsonford Road, Radnor, PA 19087 FOR IMMEDIATE RELEASE Contact: A. James Dearlove, President and Chief Executive Officer (610) 687-8900 Fax (610) 687-3688 E-Mail: invest@pennvirginia.com PENN VIRGINIA CLOSES $112 MILLION ACQUISITION OF SYNERGY OIL & GAS RADNOR, PA, July 24, 2001
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): July 23, 2001
Penn Virginia Corporation
(Exact name of registrant as specified in its charter)
(Name or other jurisdiction of incorporation)
(Commission File Number)
(IRS Employer Identification No.)
One Radnor Corporate Center, Suite 200, 100 Matsonford Road, Radnor, PA 19087
(Address of principal executive offices) (zip code)
Registrant's telephone number, including area code (610) 687-8900
Item 2. Acquisition or Disposition of Assets.
(c) Exhibits.
Exhibit 99. Press Release dated July 24, 2001
Pursuant to the requirements of the Securities Exchange Act of 1934, Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Executive Vice President and Chief Financial Officer
As of July 1, 2001 Synergy had net proved reserves of 59.2 billion cubic feet equivalent (Bcfe), about 55% of which was natural gas and 45% was oil. In addition, Penn Virginia believes that the acquired properties have additional risked probable reserves of approximately 29 Bcfe and risked possible reserves of 18 Bcfe. In addition, approximately 500 Bcfe of net unrisked upside potential has been identified in six natural gas-oriented exploration prospects and leads.
Synergy 's current daily net production is 12.0 million cubic feet (Mmcf) of natural gas and 1,200 barrels of oil, or 19.2 Mmcf equivalent. Synergy has interests in 163 producing wells, approximately 86% of which it operates, and control of 27,300 net developed and 10,000 net undeveloped leasehold acres and 214 square miles of 3-D seismic data.
On a pro forma basis, the Synergy acquisition increases Penn Virginia's net proved reserves at year-end 2000 by 34% and increases second half production by approximately 55%.
Penn Virginia President and Chief Executive Officer, A. James Dearlove, stated, "With the completion of the Synergy acquisition, Penn Virginia has completed another step in its balanced domestic energy growth strategy, which is focused on both natural gas and coal royalties. The addition of Synergy's properties provides us with a material Gulf Coast asset base and exposure to significant opportunities for accelerated reserve and production growth. These operations are balanced by our long-lived reserves in Appalachia and Mississippi, as well as our increasing revenue stream from coal royalties, which was recently enhanced by our $33 million Fork Creek acquisition announced in early June. Despite these two significant acquisitions, the Company's debt to total capitalization ratio is approximately 36%, which provides the Company with more than adequate financial capacity to continue its growth strategy."
The Synergy acquisition will be accounted for as a purchase and is expected to be accretive to operating cash flow immediately, dilutive to earnings for 2001 and accretive to earnings in 2002 and beyond.
Penn Virginia Corporation is an energy company engaged primarily in the exploration, development and production of oil and gas, leasing of mineral rights and collection of royalties. Penn Virginia is headquartered in Radnor, PA.
* * * *
This release includes forward-looking statements within the meaning of the federal securities laws with respect to development activities, capital expenditures, acquisitions and dispositions, drilling and exploration programs, expected commencement dates of coal mining or oil and gas production, projected quantities of future oil and gas production by Penn Virginia, projected quantities of future coal production by the Company's lessees producing coal from reserves leased from Penn Virginia, costs and expenditures, as well as projected demand or supply for coal and oil and gas, which will affect sales levels, prices and royalties realized by Penn Virginia. Certain factors discussed herein and in the Company's filings with the Securities and Exchange Commission could cause actual results to differ from those in these forward-looking statements, and reference is made to such filings.
Table of Contents
Page
AGREEMENT AND PLAN OF MERGER |
1 |
|
ARTICLE 1 |
DEFINITIONS |
1 |
1.1 |
Defined Terms |
1 |
1.2 |
References and Titles |
8 |
ARTICLE 2 |
THE MERGER |
8 |
2.1 |
The Merger |
8 |
2.2 |
Effect of the Merger |
8 |
2.3 |
Governing Instruments, Directors and Officers of the Surviving Corporation |
9 |
2.4 |
Effect on Securities |
9 |
2.5 |
Surrender and Exchange of Certificates |
10 |
2.6 |
Closing |
10 |
2.7 |
Effective Time of the Merger |
10 |
2.8 |
Taking of Necessary Action; Further Action |
10 |
2.9 |
Earnest Money |
11 |
2.10 |
Payment to Parent |
11 |
2.11 |
Excluded Assets |
11 |
ARTICLE 3 |
REPRESENTATIONS AND WARRANTIES OF THE COMPANY |
11 |
3.1 |
Organization |
11 |
3.2 |
Authority and Enforceability |
12 |
3.3 |
No Violations |
12 |
3.4 |
Consents and Approvals |
12 |
3.5 |
Financial Statements |
12 |
3.6 |
Capital Structure |
12 |
3.7 |
Material Agreements |
13 |
3.8 |
Bank Credit Agreement |
13 |
3.9 |
Outstanding Debt |
13 |
3.10 |
Affiliate Transactions |
13 |
3.11 |
Employment Matters |
14 |
3.12 |
Employee Benefit Plans |
14 |
3.13 |
Litigation |
14 |
3.14 |
Taxes and Tax Returns |
14 |
3.15 |
Ownership of Assets |
16 |
3.16 |
Compliance with Laws and Permits |
16 |
3.17 |
Proprietary Rights |
16 |
3.18 |
Environmental Matters |
16 |
3.19 |
Insurance |
17 |
3.20 |
Governmental Regulation |
17 |
3.21 |
Brokers |
18 |
3.22 |
Oil and Gas Operations |
18 |
3.23 |
Gas Imbalances |
18 |
3.24 |
Royalties |
19 |
3.25 |
Payout Balances |
19 |
3.26 |
Prepayments |
19 |
3.27 |
Capital Expenditures |
19 |
3.28 |
Other Mineral Related Matters |
19 |
3.29 |
Additional Drilling Obligations |
19 |
3.30 |
Financial and Product Hedging Contracts |
19 |
3.31 |
Books and Records |
19 |
3.32 |
Disclosure and Investigation |
19 |
3.33 |
Reserve Report |
20 |
3.34 |
Leases |
20 |
3.35 |
Condition of Equipment |
20 |
3.36 |
Seismic Data |
20 |
ARTICLE 4 |
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB |
20 |
4.1 |
Organization |
20 |
4.2 |
Authority and Enforceability |
21 |
4.3 |
No Violations |
21 |
4.4 |
Consents and Approvals |
21 |
4.5 |
Litigation |
21 |
4.6 |
Funding |
21 |
4.7 |
Brokers |
21 |
4.8 |
Disclosure and Investigation |
21 |
ARTICLE 5 |
COVENANTS |
22 |
5.1 |
Conduct of Business by the Company Pending Closing |
22 |
5.2 |
Access to Assets, Personnel and Information |
23 |
5.3 |
Additional Arrangements |
24 |
5.4 |
Public Announcements; Confidentiality |
24 |
5.5 |
Notification of Certain Matters |
24 |
5.6 |
Payment of Expenses |
24 |
5.7 |
Continuation of the Company's Existing Indemnification Obligations |
25 |
5.8 |
Consents Under Bank Credit Agreement |
25 |
5.9 |
Termination of Certain Agreements |
25 |
5.10 |
Resignation of Directors, Officers |
25 |
5.11 |
Adjustments to Base Merger Consideration |
25 |
5.12 |
Additional Adjustments |
30 |
5.13 |
Company Employees |
31 |
5.14 |
Management after Effective Time |
31 |
5.15 |
Tax Matters |
31 |
5.16 |
Clean Up |
32 |
ARTICLE 6 |
CONDITIONS |
32 |
6.1 |
Conditions to Each Party's Obligation to Proceed with Closing |
32 |
6.2 |
Conditions to Obligations of Parent and Merger Sub |
33 |
6.3 |
Conditions to Obligations of the Company |
34 |
ARTICLE 7 |
TERMINATION |
34 |
7.1 |
Termination Rights |
34 |
7.2 |
Effect of Termination |
35 |
ARTICLE 8 |
PAYMENT FROM ESCROW FUNDS |
35 |
8.1 |
Right To Payment From Escrow Funds |
35 |
8.2 |
Limitation on Claims |
35 |
8.3 |
Escrow Funds As Cap To All Claimant's Damages |
35 |
ARTICLE 9 |
ARBITRATION |
36 |
9.1 |
Jurisdiction |
36 |
9.2 |
Injunctive Relief |
36 |
9.3 |
Initiation |
36 |
9.4 |
Selection of Arbitrator |
36 |
9.5 |
Procedures |
36 |
9.6 |
Discovery |
36 |
9.7 |
Scope of Powers |
37 |
9.8 |
Written Decision |
37 |
9.9 |
Awards |
37 |
ARTICLE 10 |
MISCELLANEOUS |
37 |
10.1 |
Survival of Representations and Warranties |
37 |
10.2 |
Shareholders' Representatives |
37 |
10.3 |
Employees |
37 |
10.4 |
Amendment |
37 |
10.5 |
Notices |
38 |
10.6 |
Counterparts |
38 |
10.7 |
Severability |
38 |
10.8 |
Entire Agreement; No Third-Party Beneficiaries |
39 |
10.9 |
Applicable Law |
39 |
10.10 |
No Remedy in Certain Circumstances |
39 |
10.11 |
Assignment |
39 |
10.12 |
Waivers |
39 |
10.13 |
Confidentiality Agreement |
39 |
10.14 |
Incorporation |
39 |
10.15 |
Cooperation After Closing |
40 |
This Agreement and Plan of Merger (this "Agreement") is made and entered into as of June 19 , 2001, by and among Penn Virginia Corporation, a Virginia corporation (the "Parent"); Virginia Acquisition Corp., a Texas corporation (the "Merger Sub"); and Synergy Oil & Gas, Inc., a Texas corporation (the "Company").
R e c i t a l s:
A. The board of directors of each of Parent and the Company has determined that it is in the best interests of its respective shareholders to approve the strategic alliance of Parent and the Company by means of the merger of Merger Sub with and into the Company, upon the terms and subject to the conditions set forth in this Agreement.
B. Parent, Merger Sub and the Company (the "Parties") desire to make certain representations, warranties, covenants and agreements in connection with such merger and also to prescribe various conditions to such merger.
In consideration of the recitals and the mutual covenants and agreements set forth in this Agreement, the Parties hereby agree as follows:
"Affiliate" means, with respect to any Person, each other Person that directly or indirectly (through one or more intermediaries or otherwise) controls, is controlled by, or is under common control with such Person.
"Agreement" means this Agreement and Plan of Merger, as amended, supplemented or modified from time to time.
"Allocated Values" means the allocation of values for all of the assets of the Company shown on Schedule 1.1.
"Assets" means the Oil and Gas Interests, together with the other real and personal property reflected in the Company Financial Statements and all other assets and properties owned by the Company.
"Bank Credit Agreement" means the Loan Agreement, dated as of April 5, 1995, between the Company, as borrower, and Bank One, Texas, N.A., as lender (as amended and supplemented as of the date hereof).
"Bank Debt" means, for any Person, without duplication: (a) all obligations of such Person for borrowed money; (b) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments; (c) all indebtedness of such Person on which interest charges are customarily paid or accrue; (d) the unfunded or unreimbursed portion of all letters of credit issued for the account of such Person; (e) any obligation of such Person representing the deferred purchase price of property or services purchased by such Person other than trade payables incurred in the ordinary course of business and which are not more than 90 days past invoice date [and the O'Brien Production Payment]; and (f) any indebtedness, liability or obligation secured by a Lien on the assets of such Person whether or not such indebtedness, liability or obligation is otherwise non-recourse to such Person.
"Base Merger Consideration" means One Hundred Twelve Million Dollars ($112,000,000).
"CERCLIS" means the Comprehensive Environmental Response, Compensation and Liability Information System List.
"Certificate of Merger" means the certificate of merger, prepared and executed in accordance with the applicable provisions of the Texas Business Corporation Act, filed with the Secretary of State of Texas to reflect the consummation of the Merger.
"Closing" means the closing and consummation of the Merger and the other transactions contemplated by this Agreement.
"Closing Date" means the date on which the Closing occurs, which shall be on or before July 23, 2001 except as extended pursuant to Section 5.11(g).
"Closing Date Financial Statements" means an estimated income statement for the period from July 1, 2001 to the Closing Date and an estimated balance sheet as of the Closing Date prepared in accordance with GAAP consistently applied.
"Closing Date Merger Consideration" shall mean the Base Merger Consideration as adjusted pursuant to Section 5.11 and Section 5.12(a) less (1) the Escrow Fund; (2) the Working Capital Holdback; and (3) the Estimated Cleanup Costs.
"Closing Date Statement" shall have the meaning set forth in Section 5.12(b).
"COBRA" means the Consolidated Omnibus Reconciliation Act of 1985, as amended, as contained in Section 4980B of the Code.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" has the meaning set forth in the introductory paragraph of this Agreement.
"Company Certificate" means a certificate representing shares of the Company Common Stock.
"Company Common Stock" means the common stock, par value $.01 per share, of the Company.
"Company Convertible Debentures" has the meaning specified in Section 3.6.
"Company Employee Benefit Plans" has the meaning specified in Section 3.12.
"Company Financial Statements" means the audited financial statements of the Company (including the related notes), prepared in accordance with GAAP consistently applied, as of each of December 31, 1999 and December 31, 2000, and for the year then ended in each case, and the Quarterly Financial Statements.
"Company Permits" has the meaning specified in Section 3.16.
"Company Representative" means any director, officer, employee, agent, advisor (including legal, accounting and financial advisors) or other representative of the Company.
"Company Stock Option(s)" means an option (issued and outstanding on the date hereof and immediately prior to the Closing) to acquire shares of the Company Common Stock granted pursuant to the Company Stock Option Plans.
"Company Stock Option Plans" means collectively, the Company's 1997 Stock Option Plan, 1998 Stock Option Plan, and the 2000 Stock Option Plan.
"Confidentiality Agreement" means the letter agreement dated April 3, 2001, between the Company and Parent relating to the Company's furnishing of information to Parent in connection with Parent's evaluation of the possibility of acquiring the Company.
"Confidentiality and Non-Compete Agreements" means those certain Confidentiality and Non-Compete Agreements entered into between the Company and certain of its directors, officers and employees.
"Debt" means, for any Person, without duplication: (a) all obligations of such Person for borrowed money; (b) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments; (c) all indebtedness of such Person on which interest charges are customarily paid or accrue; (d) the unfunded or unreimbursed portion of all letters of credit issued for the account of such Person; (e) the present value of all obligations in respect of leases that are capitalized on the books and records of such Person; (f) any obligation of such Person representing the deferred purchase price of property or services purchased by such Person other than trade payables incurred in the ordinary course of business and which are not more than 90 days past invoice date; (g) any indebtedness, liability or obligation secured by a Lien on the assets of such Person whether or not such indebtedness, liability or obligation is otherwise non-r ecourse to such Person; (h) liabilities with respect to payments received in consideration of oil, gas or other minerals yet to be acquired or produced at the time of payment (including obligations under "take-or-pay" contracts to deliver gas in return for payments already received and the undischarged balance of any production payment created by such Person or for the creation of which such Person directly or indirectly received payment); and (i) all liability of such Person as a general partner or joint venturer for obligations of the nature described in clauses (a)through (h) preceding.
"Deemed Outstanding Convertible Share(s)" shall mean, as of the Closing Date, the shares of Common Stock which would be issuable based upon an assumed conversion of all Company Convertible Debentures which are deemed converted under Section 2.4(b)(iv).
"Deemed Outstanding Option Share(s)" shall mean, as of the Closing Date, the shares of Common Stock that would be issuable based upon an assumed exercise of all vested Company Stock Options that are deemed converted under Section 2.4(b)(iii).
"Defensible Title" means (a) with respect to Leases and Units such title that is (i) evidenced by an instrument or instruments filed of record in accordance with the conveyance and recording laws of the applicable jurisdiction or if not evidenced by an instrument or instruments filed of record is described in and subject to a farmout agreement containing terms and provisions reasonably consistent with terms and provisions used in the domestic oil and gas business and under which there exists no default by the Company; (ii) entitles the Company to receive throughout the life of the applicable well or Unit shown on Schedule 1.1 of the Disclosure Schedule, at least the NRI of Hydrocarbons produced from such well or Unit shown on Schedule 1.1 of the Disclosure Schedule, without reduction, suspension or termination, except for decreases where the Company is obligated to allow others to make up past underproduction, (iii) obligates the Company to bear, thro ughout the life of such well or Unit, no greater WI than the WI shown on Schedule 1.1 of the Disclosure Schedule for such well or Unit, except increases that result in at least a proportionate increase in the Company's NRI in such well or Unit, and (iv) subject to Permitted Encumbrances, is free and clear of all Liens, and (b) with respect to all other Assets, such title that is good and defensible and, subject to the Permitted Encumbrances, is free and clear of all Liens.
"Disclosure Schedule" means the Disclosure Schedules attached hereto.
"Earnest Money" has the meaning specified in Section 2.9.
"Earnest Money Escrow Agreement" has the meaning specified in Section 2.9.
"Effective Time" means 12:01 a.m., July 1, 2001.
"Environmental Law" means any Law relating to the environment, health and safety, Hazardous Material (including the use, handling, transportation, production, disposal, discharge or storage thereof), industrial hygiene, the environmental conditions on, under, or about any real property owned, leased or operated at any time by the Company or its Subsidiary, including soil, groundwater, and indoor and ambient air conditions or the reporting or remediation of environmental contamination. Environmental Laws include, without limitation, the Clean Air Act, as amended (the "Clean Air Act"), the Federal Water Pollution Control Act, as amended, the Rivers and Harbors Act of 1899, as amended, the Safe Drinking Water Act, as amended, the Comprehensive Environmental Response, Compensation and Liability Act, as amended ("CERCLA"), the Superfund Amendments and Reauthorization Act of 1986, as amended ("SARA"), the Resource Conservation and Recovery Act of 1976, as amended ("RCRA"), the Hazardous and Solid Waste Amendments Act of 1984, as amended, the Toxic Substances Control Act, as amended, the Occupational Safety and Health Act, as amended ("OSHA"), the Hazardous Materials Transportation Act, as amended, and any other Law whose purpose is to conserve or protect human health, the environment, wildlife or natural resources.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended from time to time and the regulations promulgated thereunder.
"Escrow Agreement" means the Escrow Agreement to be entered into pursuant to Section 6.1(c).
"Escrow Funds" means the Ten Million Dollars ($10,000,000) of the Merger Consideration to be deposited into an escrow pursuant to the Escrow Agreement.
"Estimated Cleanup Costs" has the meaning specified in Section 5.16.
"Exchange Act" means the Securities Act of 1934, as amended.
"Excluded Assets" means (i) all rights of the Company in and to the name "Synergy Oil & Gas, Inc.;" including without limitation all trademarks, logos, and internet domain rights therein; and (ii) all Oil & Gas Interests which are transferred out of the Company.
"GAAP" means generally accepted accounting principles, as recognized by the U.S. Financial Accounting Standards Board (or any generally recognized successor).
"Fannett Groundwater Condition" has the meaning specified in Schedule 3.18 of the Disclosure Schedules.
"Governmental Authority" means any national, state, county or municipal government, domestic or foreign, any agency, board, bureau, commission, court, department or other instrumentality of any such government, or any arbitrator in any case that has jurisdiction over any of the Parties or any of their respective properties or assets.
"Groundwater Violation" has the meaning specified in Section 5.11(i).
"Guaranty" by any Person means any obligation, contingent or otherwise, of such Person directly or indirectly guaranteeing any Debt or other obligation of any other Person and, without limiting the generality of the foregoing, any obligation, direct or indirect, contingent or otherwise, of such Person (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt or other obligation (whether arising by virtue of partnership arrangements, by agreements to keep-well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain financial statement conditions, by "comfort letter" or other similar undertaking of support of otherwise); or (b) entered into for the purpose of assuring in any other manner the obligee of such Debt or other obligation of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part); provided, that the term "Guaranty" shall not include endors ements for collection or deposit in the ordinary course of business. For purposes of this Agreement, the amount of any Guaranty shall be the probable amount that the guarantor would be legally required to pay under such Guaranty.
"Hazardous Material" means (a) any "hazardous substance," as defined by CERCLA; (b) any "hazardous waste" or "solid waste," in either case as defined by RCRA; (c) any solid, hazardous, dangerous or toxic chemical, material, waste or substance, within the meaning of and regulated by any Environmental Law; (d) any asbestos-containing materials in any form or condition; (e) any polychlorinated biphenyls in any form or condition; (f) petroleum, petroleum hydrocarbons, or any fractions or byproducts thereof; or (g) any air pollutant which is so designated by the U.S. Environmental Protection Agency as authorized by the Clean Air Act.
"Hydrocarbons" means oil, condensate, gas, casinghead gas and other liquid or gaseous hydrocarbons.
"Indemnified Persons" has the meaning specified in Section 5.7.
"Law" means any constitution, common law, statute, code, regulation, rule, injunction, judgment, order, decree, ruling, change or other official act of any Governmental Authority and "Laws" means all of the foregoing.
"Leases" means oil and gas leases, oil, gas and mineral leases, royalties, overriding royalties, operating rights, production payments, net profits interests, fee minerals, and other oil, gas, and mineral interests.
"Lien" means any lien, mortgage, security interest, pledge, deposit, restriction, burden, encumbrance, rights of a vendor under any title retention or conditional sale agreement, or lease or other arrangement substantially equivalent thereto, but does not include any production payment obligation.
"Material Adverse Effect" means (a) when used with respect to the Company, a result or consequence that would materially adversely affect the financial condition, results of operations or business of the Company, taken as a whole, or the aggregate value of the Company's assets, would materially impair the ability of the Company to own, hold, develop and operate its assets, or would impair the Company's ability to perform its obligations hereunder or consummate the transactions contemplated hereby or prevent or materially delay the performance of this Agreement, excluding, however, changes resulting from commodity price movements, normal oilfield operating, drilling and producing occurrences (excluding releases of Hazardous Materials and occurrences which result in a significant loss of production in a producing well which cannot be repaired or cannot be repaired for less than a substantial amount relative to the Allocated Value of the affected well) or changes resulting from legislation, regulatory action or general economic conditions that may impact the energy industry; any such result or consequence that has an adverse economic effect in excess of $500,000 shall be deemed to be a "Material Adverse Effect"; and (b) when used with respect to Parent, a result or consequence that would materially adversely affect its ability to perform its respective obligations hereunder or consummate the transactions contemplated hereby or prevent or materially delay the performance of this Agreement.
"Material Agreement" means, with respect to any Person, any written or oral agreement, contract, commitment, or understanding to which such Person is a Party, by which such Person is directly or indirectly bound, or to which any assets of such Person may be subject (other than oil, gas and mineral leases and oil and gas leases) involving total value or consideration in excess of $250,000 (a) which is not cancelable by such Person upon notice of 60 days or less without liability for further payment other than nominal penalty; (b) pursuant to which such Person acquires any material portion of the raw materials, supplies or services used or consumed by such Person in the operation of its business; or (c) pursuant to which such Person derives any material part of its revenues or is otherwise material to its business or the ownership and/or operation of its assets.
"Merger" has the meaning specified in Section 2.1.
"Merger Consideration" means the Base Merger Consideration as adjusted pursuant to Sections 5.11 and 5.12(a) less (1) any portion of the Working Capital Holdback to which Parent is entitled pursuant to Section 12(c); (2) any portion of the Escrow Funds paid to a Parent or to a Claimant pursuant to this Agreement and the Escrow Agreement; and (3) any portion of the Estimated Cleanup Costs incurred in accordance with Section 5.16 of this Agreement.
"Merger Effective Time" means the time when the Certificate of Merger is accepted for filing by the Texas Secretary of State or such later time as specified in the Certificate of Merger.
"Merger Sub" means Virginia Acquisition Corp., a Texas corporation and a wholly-owned subsidiary of Parent.
"Merger Sub Common Stock" means the common stock, par value $0.01 per share, of Merger Sub.
"NRI" means the fractional interest in Hydrocarbons produced from or allocated to a well or Unit that the Company is entitled to receive after deduction of all royalties, overriding royalties and other burdens and payments out of production that burden the Company's interest.
"O'Brien Production Payment" means the production sharing agreement between the Company and George H. O'Brien Oil & Gas Company described in Schedule 3.28 of the Disclosure Schedule.
"Oil and Gas Interest(s)" means (a) direct and indirect interests in and rights with respect to oil, gas, mineral and related properties and assets of any kind and nature, direct or indirect, including Leases and Units; (b) interests in and rights with respect to Hydrocarbons and other minerals or revenues therefrom and contracts in connection therewith and claims and rights thereto (including oil and gas leases, operating agreements, unitization and pooling agreements and orders, division orders, transfer orders, mineral deeds, royalty deeds, oil and gas sales, exchange and processing contracts and agreements, and in each case interests thereunder), surface interests, fee interests, reversionary interests, reservations and concessions; (c) easements, rights of way, licenses, permits, Leases, and other interests associated with, appurtenant to, or necessary for the operation of any of the foregoing; and (d) interests in equipment and machinery (including w ell equipment and machinery), oil and gas production, gathering, transmission, compression, treating, processing and storage facilities (including tanks, tank batteries, pipelines and gathering systems), pumps, water plants, electric plants, gasoline and gas processing plants, refineries and other tangible personal property and fixtures associated with, appurtenant to, or necessary for the operation of any of the foregoing. References in this Agreement to the "Oil and Gas Interests of the Company" or "the Company's Oil and Gas Interests" mean the collective Oil and Gas Interests of the Company.
"Ownership Interests" means the WIs and NRIs of the Company in the wells included in its Oil and & Gas Interests, as set forth on Schedule 1.1 of the Disclosure Schedule.
"Parent" has the meaning set forth in the introductory paragraph of this Agreement.
"Parent Confidential Information" means any information concerning the businesses and affairs of Parent and its Subsidiaries that is not already generally available to the public.
"Parent Representative" means any director, officer, employee, agent, advisor (including legal, accounting and financial advisors), Affiliate or other representative of Parent or its Subsidiaries.
"Parties" has the meaning set forth on the first page of this Agreement.
"Payout Balances" has the meaning specified in Section 3.25.
"Per Share Amount of the Escrow Funds" means the amount of the Escrow Funds allocable to each share of Common Stock, each Deemed Outstanding Option Share, and each Deemed Outstanding Convertible Share to be determined by the Company prior to the Closing Date upon the Closing Date Statement.
"Per Share Amount of Merger Consideration" means the amount of the Merger Consideration to be paid for each share of Common Stock, each Deemed Outstanding Option Share, and each Deemed Outstanding Convertible Share.
"Per Share Amount of the Closing Date Merger Consideration" means the amount of the Closing Date Merger Consideration allocable to each share of Common Stock, each Deemed Outstanding Option Share, and each Deemed Outstanding Convertible Share.
"Per Share Amount of the Working Capital Holdback" means the amount of the Working Capital Holdback allocable to each share of Common Stock, each Deemed Outstanding Option Share, and each Deemed Outstanding Convertible Share.
"Permitted Encumbrances" means (a) Liens for Taxes, assessments or other governmental charges or levies if the same shall not at the particular time in question be due and delinquent or (if foreclosure, distrait sale or other similar proceedings shall not have been commenced or, if commenced, shall have been stayed) are being contested in good faith by appropriate proceedings; (b) Liens of carriers, warehousemen, mechanics, laborers, materialmen, landlords, vendors, workmen and operators arising by operation of law in the ordinary course of business or by a written agreement existing as of the date hereof and necessary or incident to the exploration, development, operation and maintenance of Hydrocarbon properties and related facilities and assets for sums not yet due or being contested in good faith by appropriate proceedings; (c) Liens incurred in the ordinary course of business in connection with worker's compensation, unemployment insurance and other social security legislation (other than ERISA) which would not, individually or in the aggregate, result in a Material Adverse Effect on the Company; (d) Liens incurred in the ordinary course of business to secure the performance of bids, tenders, trade contracts, Leases, statutory obligations, surety and appeal bonds, performance and repayment bonds and other obligations of a like nature; provided that no default exists with respect to any performance of such obligations; (e) Liens, easements, rights-of-way, restrictions, servitudes, permits, conditions, covenants, exceptions, reservations and other similar encumbrances incurred in the ordinary course of business or existing on property not materially impairing the value of the Assets of the Company or interfering with the ordinary conduct of the business of the Company or rights to any of its Assets; provided that the effect thereof does not operate to reduce the NRI of the Company for any well or Unit below the NRI set forth in Schedule 1.1 of th e Disclosure Schedule for such well or Unit or increase the WI of the Company for any well or Unit above the WI set forth in Schedule 1.1 of the Disclosure Schedule for such well or Unit (unless there is a corresponding increase in the NRI for such well or Unit); (f) Liens created or arising by operation of law to secure a Party's obligations as a purchaser of oil and gas; (g) all rights to consent by, required notices to, filings with, or other actions by Governmental Authorities to the extent customarily obtained subsequent to closing; (h) farmout, carried working interest, joint operating, unitization, royalty, overriding royalty, sales and similar agreements relating to the exploration or development of, or production from, Hydrocarbon properties entered into in the ordinary course of business and not in violation of Section 5.1, provided the effect thereof does not operate to reduce the NRI of the Company for any well or Unit below the NRI set forth in Schedule 1.1 of the D isclosure Schedule for such well or Unit or increase the WI of the Company for any well or Unit above the WI set forth in Schedule 1.1 of the Disclosure Schedule for such well or Unit (unless there is a corresponding increase in the NRI for such well or Unit); (i) any defects, irregularities or deficiencies in title to the Oil and Gas Interests of the Company which (A) do not operate to reduce the NRI of the Company for any well or Unit below the NRI set forth in Schedule 1.1 of the Disclosure Schedule for such well or Unit or increase the WI of the Company for any well or Unit above the WI set forth in Schedule 1.1 of the Disclosure Schedule for such well or Unit (unless there is a corresponding increase in the NRI for such well or Unit) and (B) do not materially impair the value of the Assets or interfere with the ordinary conduct of the business of the Company or rights to any of its Assets; (j) preferential rights to purchase and Third-Party Consents (A) which are not applicable to the transaction contemplated hereby or (B) with respect to which waivers or consents have been obtained from the appropriate parties or the appropriate time period for asserting the right has expired without an exercise of the rights, in each case prior to the Closing; (k) Liens arising under or created pursuant to the Bank Credit Agreement; and (l) valid, subsisting and applicable Laws, provided the effect thereof does not operate to reduce the NRI of the Company for any well or Unit below the NRI set forth in Schedule 1.1 of the Disclosure Schedule for such well or Unit or increase the WI of the Company for any well or Unit above the WI set forth in Schedule 1.1 of the Disclosure Schedule for such well or Unit (unless there is a corresponding increase in the NRI for such well or Unit).
"Person" (whether or not capitalized) means any natural person, corporation, company, limited or general partnership, joint stock company, joint venture, association, limited liability company, trust, bank, trust company, land trust, business trust or other entity or organization, whether or not a Governmental Authority.
"Product Hedging Contract" means any agreement providing for options, swaps, floors, caps, collars, forward sales or forward purchases involving commodities or commodity prices, or indices based on any of the foregoing.
"Quarterly Financial Statements" means the financial statements of the Company, prepared by the Company, for the quarters ending March 31, 2000, June 30, 2000, March 31, 2001 and June 30, 2001 prepared in accordance with GAAP consistently applied.
"Reserve Report" means the Reserve Report specified in Section 3.33.
"Responsible Officer" means, with respect to any entity, the Chief Executive Officer, President, Chief Operating Officer, Chief Financial Officer or any Vice President of such entity.
"Restricted Employees" has the meaning specified in Section 6.2(d).
"Securities Act" means the Securities Act of 1933, as amended.
"Shareholders' Representatives" has the meaning specified in Section 10.2.
"Subsidiary(ies)" means, as to a particular Person, an entity more than 50 percent owned, directly or indirectly, by such Person.
"Surviving Corporation" has the meaning specified in Section 2.2.
"Tax Returns" has the meaning specified in Section 3.14.
"Taxes" means taxes of any kind, levies or other like assessments, customs, duties, imposts, charges or fees, including income, gross receipts, ad valorem, value-added, excise, real or personal property, asset, sales, use, federal royalty, license, payroll, transaction, capital, net worth and franchise taxes, estimated taxes, withholding, employment, social security, workers compensation, utility, severance, production, unemployment compensation, occupation, premium, windfall profits, transfer and gains taxes or other governmental charges, including any interest, penalties or additions thereto, whether disputed or not, including penalties for the failure to file any Tax Return or report.
"Third-Party Consent" means the consent or approval of any Person other than the Company, Parent, Merger Sub or any Governmental Authority.
"Units" means all unitization, communitization and pooling agreements and orders covering the lands subject to the Lease, or any portion thereof, and the united and communitized or pooled areas created thereby.
"WI" means the fractional interest of the costs and expenses associated with the exploration, development and operation of a well or Unit that the Company is obligated to bear.
"Working Capital Balance" has the meaning specified in Section 5.12.
"Working Capital Holdback" has the meaning specified in Section 5.12(b).
As used in the representations and warranties contained in this Agreement, the phrase "to the knowledge" of the representing Party shall mean that Responsible Officers of such representing Party, individually or collectively, either (a) know that the matter being represented and warranted is true and accurate or (b) have no reason to believe after reasonable due diligence and investigation that the matter being represented and warranted is not true and accurate.
Company hereby represents and warrants to Parent and Merger Sub as follows:
The Company Financial Statements and the Quarterly Financial Statements were prepared in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto and the unaudited interim financial statements are not accompanied by notes or other textual disclosure required by GAAP) and fairly present, in accordance with applicable requirements of GAAP (in the case of the unaudited statements, subject to normal, recurring adjustments), the financial position of the Company as of their respective dates and the results of operations and the cash flows of the Company for the periods presented therein. The Company Financial Statements and the Quarterly Financial Statements are consistent with the books and records of the Company. The Closing Date Financial Statements are consistent with the Company's books and records in all material respects. Since January 1, 2001, except as disclosed in the Company's financial statements as of and f or the three month period ended March 31, 2001, no event has occurred or condition existed which has had or could be expected to have a Material Adverse Effect on the Company.
Parent and Merger Sub hereby jointly and severally represent and warrant to the Company as follows:
On or before July 9, 2001 Company shall notify Parent whether Company agrees with such adjustment. If Company does not agree with such adjustment, then the parties shall enter into good faith negotiations and shall attempt to agree on such matters.
If the parties cannot reach agreement concerning the amount of such adjustment, upon either party's written request made by no later than July 11, 2001, the parties shall immediately submit the matter to T.S. Dudley Land Company (in the case of a Title Defect) or to Carter-Burgess, Inc. (in the case of an Environmental Defect) to determine the cost of curing the Title Defect or remediating the Environmental Defect. The cost of any such consultants shall be borne 50% by Parent and 50% by Company.
Each party shall present a written statement of its position on the defect in question to the consultant by July 13, 2001. By July 18, 2001, the consultant shall make a determination of all points of disagreement, including consultant's best estimate of the cost to remediate or cure, in accordance with the terms and conditions of this Agreement. The determination by the consultants shall be conclusive and binding on the parties, and shall be enforceable against any party in any court of competent jurisdiction.
For purposes hereof, the "Working Capital Balance" as of the Effective Time shall be equal to the Company's current assets less the Company's current liabilities, each as defined by GAAP consistently applied and as of such date. For purposes of determining the current liabilities for Taxes of the Company as of the Effective Time in calculating the Working Capital, (i) the amount of any compensation, which may be deducted from gross income by the Company, that is attributable to the exercise (or cancellation) or deemed exercise of Company Stock Options upon conversion pursuant to Section 2.4(b) at the Closing Date, shall be treated as paid to such employees prior to the Effective Time; and (ii) any Taxes payable by the Company with respect to compensation described in subparagraph (i), including, without limitation, FICA and Medicare Taxes, shall be treated as attributable to the period prior to the Effective Time.
No later than 15 days after the Parties agree on, or Ernest & Young's determines, the actual Working Capital Balance:
Penn Virginia Energy
11757 Katy Freeway, Suite 300
Houston, TX 77079
Attention: H. Baird Whitehead
Facsimile: 281/966-3870
with copies to:
Penn Virginia Corporation
One Radnor Corporate Center
100 Matsonford Rd., Suite 200
Radnor, PA 19087-4515
Attention: Nancy M. Snyder
Facsimile: 610/687-3688
and
Michael C. Blaney
Vinson & Elkins LLP
2300 First City Tower
1001 Fannin
Houston, TX 77002-6760
Facsimile: 713/615-5487
Synergy Oil & Gas, Inc.
9821 Katy Freeway, Suite 100
Houston, TX 77024
Attention: Eric R. Pitcher
Facsimile: 713/461-4475
with a copy to:
Jackson Walker L.L.P.
1100 Louisiana, Suite 4200
Houston, TX 77002
Attention: Richard L. Burleson
Facsimile: 713/752-4221
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives, on the date first written above.
"PARENT"
PENN VIRGINIA CORPORATION
By:
Name: H. Baird Whitehead
Title: Executive Vice President
"MERGER SUB"
VIRGINIA ACQUISITION CORP.
By:
Name:
Title:
"COMPANY"
SYNERGY OIL & GAS, INC.
By:
Name: Eric R. Pitcher
Title: Chairman and Chief Operating Officer