LNB BANCORP, INC. and REGISTRAR AND TRANSFER COMPANY RIGHTS AGREEMENT Dated as of October 25, 2010
Exhibit 4.1
Execution Version
LNB BANCORP, INC.
and
REGISTRAR AND TRANSFER COMPANY
Dated as of October 25, 2010
TABLE OF CONTENTS
| PAGE | ||||||||
| Section 1. | Certain Definitions |
1 | ||||||
| Section 2. | Appointment of Rights Agent |
4 | ||||||
| Section 3. | Issue of Right Certificates |
5 | ||||||
| Section 4. | Form of Right Certificates |
6 | ||||||
| Section 5. | Countersignature and Registration |
7 | ||||||
| Section 6. | Transfer, Split Up, Combination and Exchange of Right Certificates; Mutilated, Destroyed, Lost or Stolen Right Certificates |
7 | ||||||
| Section 7. | Exercise of Rights; Purchase Price; Expiration Date of Rights |
8 | ||||||
| Section 8. | Cancellation and Destruction of Right Certificates |
9 | ||||||
| Section 9. | Reservation and Availability of Preferred Shares |
9 | ||||||
| Section 10. | Preferred Shares Record Date |
11 | ||||||
| Section 11. | Adjustment of Purchase Price, Number and Type of Shares or Number of Rights |
11 | ||||||
| Section 12. | Certificate of Adjusted Purchase Price or Number of Shares |
18 | ||||||
| Section 13. | Notice of Adjusted Purchase Price or Number or Type of Shares to Holders of Rights |
19 | ||||||
| Section 14. | Fractional Rights and Fractional Shares |
19 | ||||||
| Section 15. | Rights of Action |
20 | ||||||
| Section 16. | Agreement of Rights Holders |
20 | ||||||
| Section 17. | Right Certificate Holder Not Deemed a Shareholder |
21 | ||||||
| Section 18. | Concerning the Rights Agent |
21 | ||||||
| Section 19. | Merger or Consolidation or Change of Name of Rights Agent |
22 | ||||||
| Section 20. | Duties of Rights Agent |
22 | ||||||
| Section 21. | Change of Rights Agent |
24 | ||||||
i
| PAGE | ||||||||
| Section 22. | Issuance of New Right Certificates |
25 | ||||||
| Section 23. | Redemption |
25 | ||||||
| Section 24. | Notice of Certain Events |
26 | ||||||
| Section 25. | Notices |
27 | ||||||
| Section 26. | Supplements and Amendments |
27 | ||||||
| Section 27. | Exchange |
28 | ||||||
| Section 28. | Successors |
29 | ||||||
| Section 29. | Benefits of this Agreement |
29 | ||||||
| Section 30. | Determinations and Actions by Directors |
29 | ||||||
| Section 31. | Severability |
30 | ||||||
| Section 32. | Governing Law |
30 | ||||||
| Section 33. | Counterparts |
30 | ||||||
| Section 34. | Descriptive Headings |
30 | ||||||
Exhibit A — Form of Certificate of Amendment to Amended Articles of Incorporation
Exhibit B — Form of Right Certificate
Exhibit C — Form of Summary of Rights
ii
Rights Agreement, dated as of October 25, 2010, (this “Agreement”), between LNB Bancorp, Inc.,
an Ohio corporation (the “Company”), and Registrar and Transfer Company, a New Jersey corporation,
as rights agent (the “Rights Agent”).
RECITALS
Effective October 25, 2010, the Directors of the Company authorized and declared a dividend
consisting of one right (“Right”) for each common share, $1.00 par value, of the Company (the
“Common Shares”) outstanding as of the close of business on November 5, 2010 (the “Record Date”),
each Right initially representing the right to purchase one one-hundreth of one Preferred Share (as
hereinafter defined) on the terms and subject to the conditions herein set forth, and have further
authorized and directed the issuance of one Right (subject to adjustment as provided herein) with
respect to each Common Share issued or delivered by the Company (whether originally issued or
delivered from the Company’s treasury) after the Record Date but prior to the earlier of the
Distribution Date (in the case of Common Shares issued upon conversion of the Company’s convertible
securities, prior to the tenth day after the Distribution Date), and the Expiration Date (each as
hereinafter defined), or as provided in Section 27.
Accordingly, in consideration of the premises and the mutual agreements herein set forth, the
parties hereto hereby agree as follows:
Section 1. Certain Definitions. For purposes of this Agreement, the following terms have
the meanings indicated:
(a) “Acquiring Person” shall mean any Person (other than the Company, any Subsidiary,
any employee benefit or stock ownership plan of the Company or of any Subsidiary, or any
entity holding Common Shares for or pursuant to any such plan) who or that, together with
all Affiliates and Associates of such Person, shall be the Beneficial Owner of 10% or more
of the Common Shares then outstanding, provided, however, that a Person will
not be deemed to have become an Acquiring Person solely as a result of a reduction in the
number of Common Shares outstanding unless and until (i) such time as such Person or any
Affiliate or Associate of such Person shall thereafter become the Beneficial Owner of any
additional Common Shares, other than as a result of a stock dividend, stock split or similar
transaction effected by the Company in which all holders of Common Shares are treated
equally, or (ii) any other Person who is the Beneficial Owner of any Common Shares shall
thereafter become an Affiliate or Associate of such Person. Notwithstanding the foregoing,
if the Directors of the Company determine in good faith that a Person who would otherwise be
an “Acquiring Person,” as defined pursuant to the foregoing provisions of this paragraph
(a), has become such inadvertently, and such Person divests as promptly as practicable a
sufficient number of Common Shares so that such Person would no longer be an Acquiring
Person as defined pursuant to the foregoing provisions of this paragraph (a), then such
Person shall not be deemed to be an “Acquiring Person” for any purposes of this Agreement.
1
(b) “Affiliate” and “Associate” shall have the respective meanings ascribed to such
terms in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act
of 1934, as amended (the “Exchange Act”), as in effect on the date hereof.
(c) A Person shall be deemed the “Beneficial Owner” of, and to “beneficially own,” any
securities:
(i) the beneficial ownership of which such Person or any of such Person’s
Affiliates or Associates, directly or indirectly, has the right to acquire (whether
such right is exercisable immediately or only after the passage of time) pursuant to
any agreement, arrangement or understanding (whether or not in writing), or upon the
exercise of conversion rights, exchange rights, rights, warrants or options, or
otherwise (in each case, other than upon exercise or exchange of the Rights);
provided, however, that a Person shall not be deemed the Beneficial
Owner of, or to beneficially own, securities tendered pursuant to an offer to
purchase or a tender or exchange offer made by or on behalf of such Person or any of
such Person’s Affiliates or Associates until such tendered securities are accepted
for purchase or exchange; or
(ii) which such Person or any of such Person’s Affiliates or Associates,
directly or indirectly, has or shares the right to vote or dispose of, including
pursuant to any agreement, arrangement or understanding (whether or not in writing);
or
(iii) of which any other Person is the Beneficial Owner, if such Person or any
of such Person’s Affiliates or Associates has any agreement, arrangement or
understanding (whether or not in writing) with such other Person (or any of such
other Person’s Affiliates or Associates) with respect to acquiring, holding, voting
or disposing of any securities of the Company; or
(iv) in respect of which such Person or any of such Person’s Affiliates or
Associates has a Synthetic Long Position;
provided, however, that a Person shall not be deemed the Beneficial Owner
of, or to beneficially own, any security (A) if such Person has the right to vote such
security pursuant to an agreement, arrangement or understanding (whether or not in writing)
which (1) arises solely from a revocable proxy given to such Person in response to a public
proxy or consent solicitation made pursuant to, and in accordance with, the applicable rules
and regulations of the Exchange Act and (2) is not also then reportable on Schedule 13D
under the Exchange Act (or any comparable or successor report), or (B) if such beneficial
ownership arises solely as a result of such Person’s status as a “clearing agency,” as
defined in Section 3(a)(23) of the Exchange Act; and provided, further, that
nothing in this paragraph (c) shall cause a Person engaged in business as an underwriter of
securities to be the Beneficial Owner of, or to beneficially own, any securities acquired
through such Person’s participation in good faith in an underwriting syndicate until the
expiration of 40 calendar days after the date of such acquisition, or such later date as the
Directors of the Company may determine in any specific case.
2
(d) “Business Day” shall mean any day other than a Saturday, Sunday, or a day on which
banking institutions in the State of Ohio are authorized or obligated by law or executive
order to close.
(e) “close of business” on any given date shall mean 5:00 p.m., Eastern time, on such
date; provided, however, that if such date is not a Business Day it shall
mean 5:00 p.m., Eastern time, on the next succeeding Business Day.
(f) “Common Shares” when used with reference to the Company shall mean the Common
Shares, $1.00 par value per share, of the Company; provided that, if the Company is
the continuing or surviving corporation in a transaction described in Section 11(d)(ii)
hereof, “Common Shares” when used with reference to the Company shall mean the capital stock
with the greatest aggregate voting power of the Company, or, if the Company is a subsidiary
of another corporation or business trust, the corporation or business trust that ultimately
controls the Company. “Common Shares” when used with reference to any corporation or
business trust, other than the Company, shall mean the capital stock with the greatest
aggregate voting power of such corporation or business trust, or, if such corporation or
business trust is a subsidiary of another corporation or business trust, the corporation or
business trust which ultimately controls such first-mentioned corporation or business trust.
(g) “Distribution Date” shall mean the earlier of: (i) the close of business on the
tenth calendar day following the Share Acquisition Date, or (ii) the close of business on
the tenth Business Day (or, unless the Distribution Date shall have previously occurred,
such later date as may be specified by the Directors of the Company) after the date of the
commencement of a tender or exchange offer by any Person (other than the Company or any
Subsidiary or any employee benefit or stock ownership plan of the Company or of any
Subsidiary or any entity holding Common Shares for or pursuant to the terms of any such
plan), if upon the consummation thereof such Person would be the Beneficial Owner of 10% or
more of the then-outstanding Common Shares.
(h) “Expiration Date” shall mean the earliest of (i) the close of business on the Final
Expiration Date, (ii) the time at which the Rights are redeemed as provided in Section 23
hereof, and (iii) the time at which all exercisable Rights are exchanged as provided in
Section 27 hereof.
(i) “Final Expiration Date” shall mean the tenth anniversary of the Record Date.
(j) “Flip-in Event” shall mean the event described in Section 11(a)(ii) hereof.
(k) “Flip-over Event” shall mean any event described in clauses (i), (ii) or (iii) of
Section 11(d) hereof.
(l) “Person” shall mean any individual, firm, corporation or other entity, and shall
include any successor (by merger or otherwise) of such entity.
3
(m) “Preferred Shares” shall mean Series A Voting Preferred Shares, no par value per
share, of the Company having the rights and preferences set forth in the form of Certificate
of Amendment to the Amended Articles of Incorporation of LNB Bancorp, Inc. attached as
Exhibit A.
(n) “Share Acquisition Date” shall mean the first date of public announcement by the
Company (by press release, filing made with the Securities and Exchange Commission or
otherwise) that an Acquiring Person has become such.
(o) “Subsidiary” shall mean any corporation or other entity of which a majority of the
voting power of the voting equity securities or equity interests is owned, directly or
indirectly, by the Company.
(p) “Synthetic Long Position” shall mean, with respect to any security, any option,
warrant, convertible security, stock appreciation right or other contractual right, whether
or not presently exercisable, which has an exercise or conversion privilege or a settlement
payment or mechanism at a price related to such security or a value determined in whole or
part with reference to, or derived in whole or in part from, the market price or value of
such security (without regard to whether such instrument or right (i) conveys any voting
power to such Person or any Affiliate or Associate thereof, or (ii) is required to be, or
capable of being, settled through delivery of such securities) and which increases in value
as the value of such security increases or which provides to the holder of such instrument
or right an opportunity, directly or indirectly, to profit or share in any profit derived
from any increase in the value of such security, but shall not include interests in
broad-based index options, broad-based index futures, and broad-based publicly traded market
baskets of stocks approved for trading by the appropriate federal governmental authority.
The number of securities in respect of which a Person has a Synthetic Long Position shall be
the notional or other number of securities specified in the documentation evidencing the
Synthetic Long Position as being subject to be acquired upon the exercise or settlement of
the applicable right or as the basis upon which the value or settlement amount of such
right, or the opportunity of the holder of such right to profit or share in any profit, is
to be calculated in whole or in part or, if no such number of securities is specified in
such filing or documentation, as determined by the Directors of the Company in good faith to
be the number of securities to which the Synthetic Long Position relates.
(q) “Triggering Event” shall mean any Flip-in Event or Flip-over Event.
Section 2. Appointment of Rights Agent. The Company hereby appoints the Rights Agent to
act as agent for the Company and the holders of the Rights (who, in accordance with Section 3
hereof, shall also be, prior to the Distribution Date, the holders of the Common Shares) in
accordance with the terms and conditions hereof, and the Rights Agent hereby accepts such
appointment and hereby certifies that it complies with the requirements of the New York Stock
Exchange governing transfer agents and registrars. The Company may from time to time act as
Co-Rights Agent or appoint such Co-Rights Agents as it may deem necessary or desirable. Any actions
which may be taken by the Rights Agent pursuant to the terms of this Agreement may be taken by any
such Co-Rights Agent. To the extent that any Co-Rights Agent takes any
4
action pursuant to this Agreement, such Co-Rights Agent shall be entitled to all of the rights and
protections of, and subject to all of the applicable duties and obligations imposed upon, the
Rights Agent pursuant to the terms of this Agreement.
Section 3. Issue of Right Certificates.
(a) Until the Distribution Date (i) the Rights will be evidenced (subject to the provisions of
paragraph (b) of this Section 3) by the certificates for Common Shares registered in the names of
the record holders thereof (which certificates for Common Shares shall also be deemed to be Right
Certificates) and not by separate Right Certificates, and (ii) the Rights will be transferable only
in connection with the transfer of the underlying Common Shares in the stock transfer books of the
Company maintained by the Company or its appointed transfer agent. As soon as practicable after the
Distribution Date, the Rights Agent will send, at the expense of the Company, by first-class,
insured, postage prepaid mail, to each record holder of Common Shares as of the close of business
on the Distribution Date, at the address of such holder shown on the records of the Company, a
Right Certificate, in substantially the form of Exhibit B hereto, evidencing one Right for
each Common Share so held, subject to adjustment, together with a notice setting forth the Purchase
Price (as defined in Section 4 hereof) as in effect on the Distribution Date. As of the
Distribution Date, the Rights will be evidenced solely by such Right Certificates.
(b) Any Right Certificate issued pursuant to this Section 3 that represents Rights
beneficially owned by an Acquiring Person or any Associate or Affiliate thereof and any Right
Certificate issued at any time upon the transfer of any Rights to an Acquiring Person or any
Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate,
and any Right Certificate issued pursuant to Sections 6 or 11 hereof upon transfer, exchange,
replacement or adjustment of any other Right Certificate referred to in this sentence, shall be
subject to and shall contain the following legend or such similar legend as the Company may deem
appropriate and as is not inconsistent with the provisions of this Agreement, or as may be required
to comply with any applicable law or with any rule or regulation made pursuant thereto or with any
rule or regulation of any stock exchange or transaction reporting system on which the Rights may
from time to time be listed or quoted, or to conform to usage:
The Rights represented by this Right Certificate are or were beneficially owned by a
Person who is or was an Acquiring Person or an Affiliate or an Associate of an
Acquiring Person (as such terms are defined in the Rights Agreement). This Right
Certificate and the Rights represented hereby may become null and void in the
circumstances specified in Section 11(a)(ii) or Section 11(d) of the Rights
Agreement.
(c) On the Record Date or as soon as practicable thereafter, the Company will make available a
copy of a Summary of Rights to Purchase Preferred Shares, in substantially the form attached hereto
as Exhibit C (the “Summary of Rights”), to any holder of Rights who may request it from
time to time prior to the Final Expiration Date. With respect to certificates for Common Shares
outstanding as of the Record Date, until the Distribution Date, the Rights will be evidenced by
such certificates for Common Shares registered in the names of the holders thereof. Until the
earlier of the Distribution Date and the Expiration Date, the surrender for
5
transfer of any certificate for Common Shares outstanding on the Record Date shall also
constitute the surrender for transfer of the Rights associated with the Common Shares represented
thereby.
(d) Certificates for Common Shares issued (including, without limitation, any certificates for
Common Shares issued upon conversion of the Company’s convertible securities or upon exercise of
stock options) or surrendered for transfer or exchange after the Record Date but prior to the
earlier of the Distribution Date or the Expiration Date, shall have stamped on, impressed on,
printed on, written on or otherwise affixed to them the following legend or such similar legend as
the Company may deem appropriate and as is not inconsistent with the provisions of this Agreement,
or as may be required to comply with any applicable law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange or transaction reporting
system on which the Common Shares or the Rights may from time to time be listed or quoted, or to
conform to usage:
This Certificate also evidences and entitles the holder hereof to certain Rights as
set forth in a Rights Agreement between LNB Bancorp, Inc. and Registrar and Transfer
Company, dated as of October 25, 2010 (the “Rights Agreement”), the terms of which
are hereby incorporated herein by reference and a copy of which is on file at the
principal executive offices of LNB Bancorp, Inc. The Rights are not exercisable
prior to the occurrence of certain events specified in the Rights Agreement. Under
certain circumstances, as set forth in the Rights Agreement, such Rights may be
redeemed, may be exchanged, may expire, or may be evidenced by separate certificates
and will no longer be evidenced by this Certificate. LNB Bancorp, Inc. will mail to
the holder of this Certificate a copy of the Rights Agreement without charge
promptly after receipt of a written request therefor. Under certain circumstances,
Rights that are or were beneficially owned by an Acquiring Person or any Affiliate
or Associate thereof (as such terms are defined in the Rights Agreement) and any
subsequent holder of such Rights may become null and void.
With respect to certificates containing the legend described above, until the Distribution Date,
the Rights associated with the Common Shares represented by such certificates shall be evidenced by
such certificates alone, and the surrender for transfer of any such certificate shall also
constitute the surrender for transfer of the Rights associated with the Common Shares represented
thereby.
Section 4. Form of Right Certificates. The Right Certificates (and the forms of (a)
election to purchase Preferred Shares, (b) assignment and (c) certificate of exchange to be printed
on the reverse thereof) shall be substantially the same as Exhibit B hereto with such
changes, marks of identification or designation and such legends, summaries or endorsements printed
thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any applicable law or with any rule or regulation
made pursuant thereto or with any exchange on which the Rights may from time to time be listed, or
to conform to usage. Subject to the provisions of Section 11 and 22 hereof, the Right
Certificates, whenever issued, and on their face shall entitle the holders thereof to purchase such
number of one one-hundreths of a Preferred Share as shall be set forth
6
therein at the price per one one-hundreth of a Preferred Share set forth therein (the “Purchase
Price”), but the Purchase Price and the number and kind of securities issuable upon exercise of
each Right and the number of Rights outstanding shall be subject to adjustment as provided herein.
Section 5. Countersignature and Registration.
(a) The Right Certificates shall be executed on behalf of the Company by its Chairman of the
Board, President or any Vice President, either manually or by facsimile signature, and have affixed
thereto the Company’s seal or a facsimile thereof which shall be attested by the Secretary or an
Assistant Secretary of the Company, either manually or by facsimile signature. The Right
Certificates shall be manually countersigned by the Rights Agent and shall not be valid for any
purpose unless so countersigned. In case any officer of the Company who shall have signed any of
the Right Certificates shall cease to be such officer of the Company before countersignature by the
Rights Agent and issuance and delivery by the Company, such Right Certificates, nevertheless, may
be countersigned by the Rights Agent, and issued and delivered by the Company with the same force
and effect as though the person who signed such Right Certificates had not ceased to be such
officer of the Company; and any Right Certificate may be signed on behalf of the Company by any
person who, at the actual date of the execution of such Right Certificate, shall be a proper
officer of the company to sign such Right Certificate, although at the date of the execution of
this Rights Agreement any such person was not such an officer.
(b) Following the Distribution Date, the Rights Agent will keep or cause to be kept, at the
principal office of the Rights Agent designated for such purpose and at such other offices as may
be required to comply with any applicable law or with any rule or regulations made pursuant thereto
or with any rule or regulation of any stock exchange or transaction reporting system on which the
Rights may be listed, books for registration and transfer of the Right Certificates issued
hereunder. Such books shall show the names and addresses of the respective holders of the Right
Certificates, the number of Rights evidenced on its face by each of the Right Certificates and the
date of each of the Right Certificates.
Section 6. Transfer, Split Up, Combination and Exchange of Right Certificates; Mutilated,
Destroyed, Lost or Stolen Right Certificates.
(a) Subject to the provisions of Sections 7(e) and 14 hereof, at any time after the close of
business on the Distribution Date, and at or prior to the close of business on the Expiration Date,
any Right Certificate or Certificates representing exercisable rights may be transferred, split up,
combined or exchanged for another Right Certificate or Right Certificates, entitling the registered
holder to purchase a like number of one one-hundreths of a Preferred Share (or other securities, as
the case may be) as the Right Certificate or Right Certificates surrendered then entitled such
holder (or former holder in the case of a transfer) to purchase. Any registered holder desiring to
transfer, split up, combine or exchange any Right Certificate, shall make such request in writing
delivered to the Rights Agent, and shall surrender the Right Certificate or Right Certificates to
be transferred, split up, combined or exchanged at the principal office of the Rights Agent
designated for such purpose. Thereupon or as promptly as practicable thereafter, subject to the
provisions of Section 11 and Section 14 hereof, the
7
Company will prepare, execute and deliver to the Rights Agent, and the Rights Agent will
countersign and deliver, a Right Certificate or Rights Certificates, as the case may be, as so
requested. The Company may require payment of a sum sufficient to cover any tax or governmental
charge that may be imposed in connection with any transfer, split up, combination or exchange of
Right Certificates.
(b) Upon receipt by the Company and the Rights Agent of evidence reasonably satisfactory to
them of the loss, theft, destruction or mutilation of a Right Certificate, and, in case of loss,
theft or destruction, of indemnity or security reasonably satisfactory to them, and, if requested
by the Company, reimbursement to the Company and the Rights Agent of all reasonable expenses
incidental thereto, and upon surrender to the Rights Agent, and cancellation of the Right
Certificate if mutilated, the Company will prepare, execute and deliver a new Right Certificate of
like tenor to the Rights Agent and the Rights Agent shall countersign and deliver such new Right
Certificate to the registered holder in lieu of the Right Certificate so lost, stolen, destroyed or
mutilated.
Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights.
(a) The registered holder of any Right Certificate may exercise the Rights evidenced thereby
(except as otherwise provided herein) in whole or in part at any time after the Distribution Date
and prior to the Expiration Date, upon surrender of the Right Certificate, with the form of
election to purchase on the reverse side thereof duly executed, to the Rights Agent at the
principal office or offices of the Rights Agent designated for such purpose, together with payment
in cash, in lawful money of the United States of America by certified check or bank draft payable
to the order of the Company, equal to the sum of (i) the exercise price for the total number of
securities as to which such surrendered Rights are exercised and (ii) an amount equal to any
applicable transfer tax required to be paid by the holder of such Right Certificate in accordance
with the provisions of Section 9 hereof.
(b) The Purchase Price for each one one-hundreth of a Preferred Share shall initially be
$60.00, and shall be subject to adjustment from time to time as provided in Section 11 hereof and
shall be payable in lawful money of the United States of America in accordance with paragraph (c)
below.
(c) Upon receipt of a Right Certificate representing exercisable Rights, with the form of
election to purchase duly executed, accompanied by payment of the Purchase Price for the shares to
be purchased and an amount equal to any applicable transfer tax in cash, or by certified check or
bank draft payable to the order of the Company, the Rights Agent shall thereupon promptly (i)
requisition from any transfer agent of the Preferred Shares (or make available, if the Rights Agent
is the transfer agent) certificates for the number of Preferred Shares to be purchased and the
Company hereby irrevocably authorizes and directs its transfer agent to comply with all such
requests, (ii) when appropriate, requisition from the Company the amount of cash to be paid or
depositary receipts to be issued in lieu of the issuance of fractional shares in accordance with
Section 14 hereof or the amount of cash to be paid in lieu of the issuance of Preferred Shares in
accordance with Sections 11(a)(iii) or 11(d) hereof, (iii) promptly after receipt of such
certificates (or depositary receipts, when appropriate), cause the same to be delivered to or upon
the order of the registered holder of such Right Certificate, registered in
8
such name or names as may be designated by such holder and (iv) when appropriate, after
receipt promptly deliver such cash to or upon the order of the registered holder of such Right
Certificate.
(d) In case the registered holder of any Right Certificate shall exercise less than all the
Rights evidenced thereby, a new Right Certificate evidencing Rights equivalent to the Rights
remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right
Certificate or to his duly authorized assigns, subject to the provisions of Section 14 hereof.
(e) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor
the Company shall be obligated to undertake any action with respect to any purported transfer,
split up, combination or exchange of any Right Certificate pursuant to Section 6 hereof or the
exercise of a Right Certificate as set forth in this Section 7 unless the registered holder of such
Right Certificate shall have (i) completed and signed the certificate following the form of
assignment or form of election to purchase, as applicable, set forth on the reverse side of the
Right Certificate surrendered for such transfer, split up, combination, exchange or exercise, and
(ii) provided such additional evidence of the identity of the Beneficial Owner (or former
Beneficial Owner) or Affiliates or Associates thereof as the Company shall have reasonably
requested.
Section 8. Cancellation and Destruction of Right Certificates. All Right Certificates
surrendered for the purpose of exercise, transfer, split up, combination or exchange shall, if
surrendered to the Company or to any of its stock transfer agents, be delivered to the Rights Agent
for cancellation or in cancelled form, or, if surrendered to the Rights Agent, shall be cancelled
by it, and no Right Certificates shall be issued in lieu thereof except as expressly permitted by
any of the provisions of this Agreement. The Company shall deliver to the Rights Agent for
cancellation and retirement, and the Rights Agent shall so cancel and retire, any other Right
Certificate purchased or acquired by the Company otherwise than upon the exercise thereof. The
Rights Agent shall deliver all cancelled Right Certificates to the Company, or shall, at the
written request of the Company, destroy such cancelled Right Certificates, and in such case shall
deliver a certificate of destruction thereof to the Company.
Section 9. Reservation and Availability of Preferred Shares.
(a) The Company covenants and agrees that it will cause to be reserved and kept available out
of its authorized and unissued Preferred Shares or any authorized and issued Preferred Shares held
in its treasury, the number of Preferred Shares that will be sufficient to permit the exercise
pursuant to Section 7 hereof of all outstanding Rights; such number of Preferred Shares reserved
and kept available shall be adjusted from time to time, if and to the extent required, upon the
occurrence of any of the events described in Section 11 hereof.
(b) The Company covenants and agrees that it will take all such action as may be necessary to
ensure that all Preferred Shares (or Common Shares and/or other securities, as the case may be)
delivered upon exercise of Rights shall be, at the time of delivery of the certificates for such
Preferred Shares (or Common Shares and/or other securities, as the case may be) (subject to payment
of the Purchase Price), duly and validly authorized and issued, fully paid,
9
nonassessable and freely tradeable shares, free and clear of any liens, encumbrances and other
adverse claims and not subject to any rights of call or first refusal.
(c) The Company further covenants and agrees that it will pay when due and payable any and all
federal and state transfer taxes and charges which may be payable in respect of the issuance or
delivery of the Right Certificates or of any Preferred Shares (or Common Shares and/or other
securities, as the case may be) upon the exercise of Rights. The Company shall not, however, be
required to pay any transfer tax which may be payable in respect of any transfer or delivery of
Right Certificates to a person other than, or the issuance or delivery of certificates for the
Preferred Shares (or Common Shares and/or other securities, as the case may be) in a name other
than that of, the registered holder of the Right Certificates evidencing Rights surrendered for
exercise, or to issue or deliver any certificates for Preferred Shares (or Common Shares and/or
other securities, as the case may be) upon the exercise of any Rights until any such tax shall have
been paid (any such tax being payable by the holder of such Right Certificate at the time of
surrender) or until it has been established to the Company’s satisfaction that no such tax is due.
(d) So long as the Preferred Shares (and, following the occurrence of the Distribution Date,
Common Shares and/or other securities, as the case may be) issuable and deliverable upon the
exercise of the Rights may be listed or traded on any inter-dealer quotation system or national
securities exchange, the Company shall use its best efforts to cause, from and after such time as
the Rights become exercisable, all shares reserved for issuance to be listed on one such system or
exchange upon official notice of issuance of such exercise.
(e) The Company also shall use its best efforts (i) to file on an appropriate form, as soon as
practicable following the Distribution Date, a registration statement under the Securities Act of
1933, as amended (the “Securities Act”), with respect to the securities issuable upon exercise of
the Rights, (ii) to cause such registration statement to become effective as soon as practicable
after such filing, and (iii) to cause such registration statement to remain effective (with a
prospectus at all times meeting the requirements of the Securities Act) until the earlier of (A)
the date as of which the Rights are no longer exercisable for such securities and (B) the
Expiration Date. The Company shall also take such action as may be appropriate under, or to ensure
compliance with, the securities or “blue sky” laws of the various states in connection with the
exercisability of the Rights. The Company may temporarily suspend, for a period of time after the
date set forth in clause (i) of the first sentence of this paragraph, the exercisability of the
Rights in order to prepare and file such registration statement and to 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. In addition, if the Company shall determine
that a registration statement should be filed under the Securities Act or any state securities laws
following the Distribution Date, the Company may temporarily suspend the exercisability of the
Rights in each relevant jurisdiction until such time as a registration statement has been declared
effective and, 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. Notwithstanding anything in this Agreement
to the contrary, the Rights shall not be exercisable in any jurisdiction if the requisite
registration or qualification in such jurisdiction
10
shall not have been effected or the exercise of the Rights shall not be permitted under
applicable law.
(f) Notwithstanding anything in this Agreement to the contrary, after the Distribution Date,
the Company shall not, except as permitted by Section 23 or Section 26 hereof, take (or permit any
Subsidiary to take) any action if at the time such action is taken it is reasonably foreseeable
that such action will eliminate or otherwise diminish the benefits intended to be afforded by the
Rights.
(g) In the event that the Company is obligated to pay cash pursuant to Sections 11 or 14
hereof, it shall make all arrangements necessary so that such cash is available for distribution by
the Rights Agent, if and when appropriate.
Section 10. Preferred Shares Record Date. Each person in whose name any certificate for
Preferred Shares is issued upon the exercise of Rights shall for all purposes be deemed to have
become the holder of record of the Preferred Shares represented thereby on, and such certificate
shall be dated, the date upon which the Right Certificate evidencing such Rights was duly
surrendered and payment of the Purchase Price (and any applicable transfer taxes) was made;
provided, however, that if the date of such surrender and payment is a date upon
which the Preferred Shares transfer books of the Company are closed, such person shall be deemed to
have become the record holder of such shares on, and such certificate shall be dated, the next
succeeding Business Day on which the Preferred Shares transfer books of the Company are open. Prior
to the exercise of the Rights evidenced thereby, the holder of a Right Certificate shall not be
entitled to any rights of a shareholder of the Company with respect to shares for which the Rights
shall be exercisable, including, without limitation, the right to vote, to receive dividends or
other distributions or to exercise any preemptive rights, and shall not be entitled to receive any
notice of any proceedings of the Company, except as provided herein.
Section 11. Adjustment of Purchase Price, Number and Type of Shares or Number of Rights.
The Purchase Price, the number and type of shares covered by each Right and the number of Rights
outstanding are subject to adjustment from time to time as provided in this Section 11.
(a) (i) In the event that the Company shall at any time after the date of this Agreement (A)
declare a dividend on the Preferred Shares payable in Preferred Shares, (B) subdivide the
outstanding Preferred Shares, (C) combine the outstanding Preferred Shares into a smaller number of
shares or (D) issue any shares of its capital stock in a reclassification of the Preferred Shares
(including any such reclassification in connection with a consolidation or merger in which the
Company is the continuing or surviving corporation), except as otherwise provided in this Section
11(a) or in Section 11(d) hereof, the Purchase Price in effect at the time of the record date for
such dividend or of the effective date of such subdivision, combination or reclassification, and
the number and type of shares of capital stock issuable on such date, shall be proportionately
adjusted so that the holder of any Right exercised after such time shall be entitled to receive the
aggregate number and kind of shares of capital stock which, if such Right had been exercised
immediately prior to such date and at a time when the Preferred Shares transfer books of the
Company were open, such holder would have owned upon such exercise and been entitled to receive by
virtue of such dividend, subdivision, combination or reclassification. If an event
11
occurs which would require an adjustment under both this Section 11(a)(i) and Section
11(a)(ii) hereof or Section 11(d) hereof, the adjustment provided for in this Section 11(a)(i)
shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section
11(a)(ii) or Section 11(d) hereof.
(ii) In the event that any Person becomes an Acquiring Person, provision shall be made
so that from and after the Distribution Date each holder of a Right, except as provided
below, shall thereafter have a right to receive, upon exercise thereof in accordance with
the terms of this Agreement at an exercise price per Right equal to the then-current
Purchase Price multiplied by the number of one one-hundreths of a Preferred Share for which
a Right is then exercisable, in lieu of fractional interests in Preferred Shares, such
number of Common Shares as shall equal the result obtained by (x) multiplying the product of
the then-current Purchase Price by the number of one one-hundreths of a Preferred Share for
which a Right was exercisable immediately prior to the first occurrence of a Triggering
Event, and dividing that product by (y) 50% of the current per share market price of the
Common Shares (determined pursuant to Section 11(e) hereof) on the date of the occurrence of
such event. Notwithstanding anything in this Agreement to the contrary, from and after the
occurrence of such event (1) any Rights that are or were acquired or beneficially owned by
any Acquiring Person (or any Affiliate or Associate of such Acquiring Person) shall be void
and any holder of such Rights shall thereafter have no right to exercise such Rights under
any provision of this Agreement, (2) no Right Certificate shall be issued pursuant to this
Agreement that represents Rights beneficially owned by an Acquiring Person or any Affiliate
or Associate thereof, (3) no Right Certificate shall be issued at any time upon the transfer
of any Rights to an Acquiring Person or any Affiliate or Associate thereof or to any nominee
of such Acquiring Person or Affiliate thereof, and (4) any Right Certificate delivered to
the Rights Agent for transfer to an Acquiring Person or any Affiliate or Associate thereof
shall be cancelled.
(iii) In lieu of issuing Common Shares of the Company in accordance with Section
11(a)(ii) hereof, the Company may, in the sole discretion of the Directors, elect to (and,
in the event that the Directors have not exercised the exchange right contained in Section
27 hereof and there are not sufficient issued but not outstanding and authorized but
unissued Common Shares to permit the exercise in full of the Rights in accordance with
Section 11(a)(ii) hereof, the Company shall) take all such action as may be necessary to
authorize, issue or pay, upon the exercise of the Rights, cash (including by way of a
reduction of the Purchase Price), property, other securities or any combination thereof
having an aggregate value equal to the value of the Common Shares of the Company that
otherwise would have been issuable pursuant to Section 11(a)(ii), which aggregate value
shall be determined by the Directors. For purposes of the preceding sentence, the value of
the Common Shares shall be determined by multiplying the number of Common Shares issuable by
the current per share market price of such Common Shares pursuant to Section 11(d) hereof
and the value of any equity securities which the Directors determine to be a “common share
equivalent” (including Preferred Shares, in such ratio as the Directors shall determine)
shall be deemed to have the same value as the Common Shares. Any such election by the
Directors must be made and publicly announced within 60 days following the date on which the
event described in
12
Section 11(a)(ii) shall have occurred (with prompt written notice thereof to the Rights
Agent). Following the occurrence of the event described in Section 11(a)(ii), the Directors
may suspend the exercisability of the Rights for a period of up to 60 days following the
date on which the event described in Section 11(a)(ii) shall have occurred to the extent
that the Directors have not determined whether to exercise the Company’s right of election
under this Section 11(a)(iii). In the event of any such suspension, the Company shall issue
a public announcement (with prompt written notice thereof to the Rights Agent) stating that
the exercisability of the Rights has been temporarily suspended.
(b) In the event that the Company shall fix a record date for the issuance of rights, options
or warrants to all holders of Preferred Shares entitling them (for a period expiring within 45
calendar days after such record date) to subscribe for or purchase Preferred Shares (or shares
having the same rights, privileges and preferences as the Preferred Shares (“equivalent preferred
shares”)) or securities convertible into Preferred Shares or equivalent preferred shares at a price
per Preferred Share or equivalent preferred share (or having a conversion price per share, if a
security convertible into Preferred Shares or equivalent preferred shares) less than the current
per share market price of the Preferred Shares (as determined pursuant to Section 11(e) hereof) on
such record date, the Purchase Price to be in effect after such record date shall be determined by
multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the
numerator of which shall be the number of Preferred Shares outstanding on such record date plus the
number of Preferred Shares which the aggregate offering price of the total number of Preferred
Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion
price of the convertible securities so to be offered) would purchase at such current market price
and the denominator of which shall be the number of Preferred Shares outstanding on such record
date plus the number of additional Preferred Shares and/or equivalent preferred shares to be
offered for subscription or purchase (or into which the convertible securities so to be offered are
initially convertible). In case such subscription price may be paid in a consideration part or all
of which shall be in a form other than cash, the value of such consideration shall be as determined
in good faith by the Directors, whose determination shall be described in a statement filed with
the Rights Agent and shall be conclusive for all purposes. Preferred Shares owned by or held for
the account of the Company shall not be deemed outstanding for the purpose of any such computation.
Such adjustment shall be made successively whenever such a record date is fixed; and in the event
that such rights, options or warrants are not so issued, the Purchase Price shall be adjusted to be
the Purchase Price which would then be in effect if such record date had not been fixed.
(c) In the event that the Company shall fix a record date for the making of a distribution to
all holders of Preferred Shares (including any such distribution made in connection with a
consolidation or merger in which the Company is the continuing or surviving corporation) of
evidences of indebtedness, cash (other than a regular periodic cash dividend), assets, stock (other
than a dividend payable in Preferred Shares) or subscription rights, options or warrants (excluding
those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record
date shall be determined by multiplying the Purchase Price in effect immediately prior to such
record date by a fraction, the numerator of which shall be the current per share market price of
the Preferred Shares (as determined pursuant to Section 11(e) hereof) on such record date, less the
fair market value (as determined in good faith by the Directors of
13
the Company, whose determination shall be described in a statement filed with the Rights Agent
and shall be conclusive for all purposes) of the portion of the cash, assets, stock or evidences of
indebtedness so to be distributed or of such subscription rights, options or warrants applicable to
one Preferred Share, and the denominator of which shall be such current per share market price of
the Common Shares. Such adjustments shall be made successively whenever such a record date is
fixed; and in the event that such distribution is not so made, the Purchase Price shall again be
adjusted to be the Purchase Price which would then be in effect if such record date had not been
fixed.
(d) In the event that, following the Share Acquisition Date, directly or indirectly:
(i) the Company shall consolidate with, or merge with or into, any other Person and the
Company shall not be the continuing or surviving corporation of such consolidation or
merger; or
(ii) any Person shall consolidate with the Company, or merge with or into the Company
and the Company shall be the continuing or surviving corporation of such merger or
consolidation and, in connection with such merger or consolidation, all or part of the
Preferred Shares shall be changed into or exchanged for stock or other securities of any
other Person or cash or any other property; or
(iii) the Company shall sell or otherwise transfer (or one or more Subsidiaries shall
sell or otherwise transfer), in one or more transactions, assets or earning power
(including, without limitation, securities creating any obligation on the part of the
Company and/or any Subsidiaries) representing in the aggregate more than 50% of the assets
or earning power of the Company and the Subsidiaries (taken as a whole) to any Person or
Persons,
then, and in each such case, proper provision shall be made so that (A) except as provided below,
each holder of a Right shall thereafter have the right to receive, upon the exercise thereof in
accordance with the terms of this Agreement at an exercise price per Right equal to the product of
the then-current Purchase Price multiplied by the number of one one-hundreths of a Preferred Share
for which a Right was exercisable immediately prior to the first occurrence of a Triggering Event,
such number of validly authorized and issued, fully paid, nonassessable and freely tradeable Common
Shares of such surviving, resulting or acquiring Person (including the Company as the continuing or
surviving corporation of a transaction described in clause (ii) above), as the case may be, free
and clear of any liens, encumbrances and other adverse claims and not subject to any rights of call
or first refusal, as shall be equal to the result obtained by (x) multiplying the product of the
then-current Purchase Price by the number of one one-hundreths of a Preferred Share for which a
Right was exercisable immediately prior to the first occurrence of a Triggering Event and dividing
that product by (y) 50% of the current per share market price of the Common Shares of such Person
(determined pursuant to Section 11(e) hereof) on the date of consummation of such Flip-over Event;
(B) the issuer of such Common Shares shall thereafter be liable for, and shall assume, by virtue of
the consummation of such Flip-over Event, all the obligations and duties of the Company pursuant to
this Agreement; (C) the term “Company” shall thereafter be deemed to refer to such issuer; and (D)
such issuer shall take such steps
14
(including, but not limited to, the reservation of a sufficient number of its Common Shares in
accordance with Section 9 hereof) in connection with such consummation as may be necessary to
assure that the provisions hereof shall thereafter be applicable, as nearly as reasonably may be
possible, in relation to its Common Shares thereafter deliverable upon the exercise of the Rights.
Notwithstanding the foregoing, if the surviving, resulting or acquiring Person in any Flip-over
Event, is not a corporation or business trust, then, and in each such case, if such surviving,
resulting or acquiring Person is directly or indirectly wholly owned by a corporation or business
trust, then all references to Common Shares of such surviving, resulting or acquiring Person in
this Section 11(d) shall be deemed to be references to the Common Shares of the corporation or
business trust which ultimately controls such Person, and if there is no such corporation or
business trust, (Y) proper provision shall be made so that such surviving, resulting or acquiring
Person shall create or otherwise make available for purposes of the exercise of the Rights in
accordance with the terms of this Agreement, a type or types of security or securities having a
fair market value at least equal to the economic value of the Common Shares which each holder of a
Right would have been entitled to receive if such surviving, resulting or acquiring Person had been
a corporation or a business trust; and (Z) all other provisions of this Section 11(d) shall apply
to the issuer of such securities as if such securities were Common Shares. The Company shall not
consummate any Flip-over Event, unless the issuer of the Common Shares or other securities, as the
case may be, shall have a sufficient number of authorized Common Shares or other securities which
have not been issued or reserved for issuance to permit the exercise in full of the Rights in
accordance with this Section 11(d) and unless prior to such consummation the Company and such
issuer shall have executed and delivered to the Rights Agent a supplemental agreement providing for
the terms set forth in this Section 11 and further providing that as promptly as practicable after
the consummation of any Flip-over Event, the issuer shall:
(I) prepare and file a registration statement under the Securities Act, with respect to
the Rights and the securities issuable upon exercise of the Rights on an appropriate form,
and shall use its best efforts to cause such registration statement to (A) become effective
as soon as practicable after such filing and (B) remain effective (with a prospectus at all
times meeting the requirements of the Securities Act) until the Expiration Date;
(II) take all such action as may be appropriate under, or to ensure compliance with,
the securities or “blue sky” laws of the various states in connection with the
exercisability of the Rights; and
(III) deliver to holders of the Rights historical financial statements for such issuer
and each of its Affiliates which comply in all respects with the requirements for
registration on Form 10 under the Exchange Act.
Notwithstanding the foregoing, upon the occurrence of any Flip-over Event, any Rights that are or
were at any time beneficially owned by any Acquiring Person or any Associate or Affiliate of such
Acquiring Person (which Acquiring Person, Associate or Affiliate is, directly or indirectly,
causing such Flip-over Event to occur) after the date upon which such Acquiring Person became such
shall become void and any holder of such Rights shall thereafter have no right to exercise such
Rights under any provision of this Agreement. The provisions of this Section 11(d) shall similarly
apply to successive mergers or consolidations or sales or other transfers. In the event
15
that a Flip-over Event occurs at any time after the occurrence of a Flip-in Event, the Rights which
have not therefore been exercised shall thereafter become exercisable in the manner described in
this Section 11(d).
(e) For the purpose of any computation hereunder, the “current per share market price” of any
security on any date shall be deemed to be the average of the daily closing prices per share of
such security for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately
prior to such date; provided, however, that in the event that the current per share
market price of the security is determined during a period following the announcement by the issuer
of such security (i) of a dividend or distribution on such security payable in shares of such
security or securities convertible into such security or (ii) any subdivision, combination or
reclassification of such security, and prior to the expiration of 30 Trading Days after the
ex-dividend date for such dividend or distribution or the record date for such subdivision,
combination or reclassification, then, and in each such case, the “current market price” shall be
appropriately adjusted to take into account ex-dividend trading or to reflect the current market
price per share of equivalent security. The closing price for each day shall be the last sale
price, regular way, or, in case no such sale takes place on such day, the average of the closing
bid and asked prices, regular way, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or admitted to trading on the New
York Stock Exchange or, if the securities are not listed or admitted to trading on the New York
Stock Exchange, as reported in the principal consolidated transaction reporting system with respect
to securities listed on the principal national securities exchange on which the securities are
listed or admitted to trading or, if the securities are not listed or admitted to trading on any
national securities exchange, the last quoted price or, if not so quoted, the average of the high
bid and low asked prices in the over-the-counter market, as reported by the National Association of
Securities Dealers, Inc. Automated Quotation System (“Nasdaq”) or such other system then in use,
or, if on any such date the securities are not quoted by any such organization, the average of the
closing bid and asked prices as furnished by a professional market maker making a market in the
securities selected by the Directors. The term “Trading Day” shall mean any day on which the
principal national securities exchange on which the securities are listed or admitted to trading is
open for the transaction of business or, if the securities are not listed or admitted to trading on
any national securities exchange, a Monday, Tuesday, Wednesday, Thursday or Friday on which banking
institutions in the State of New York are not authorized or obligated by law or executive order to
close. If the securities are not publicly held or not so listed or traded, or not the subject of
available bid and asked quotes, “current per share market price” shall mean the fair value per
share as determined in good faith by the Directors, whose determination shall be described in a
statement filed with the Rights Agent and shall be conclusive for all purposes.
(f) Except as set forth below, no adjustment in the Purchase Price shall be required unless
such adjustment would require an increase or decrease of at least 1% in such price;
provided, however, that any adjustments which by reason of this Section 11(f) are
not required to be made shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Section 11 shall be made to the nearest cent or to the
nearest ten-thousandth of a share as the case may be. Notwithstanding the first sentence of this
Section 11(f), any adjustment required by this Section 11 shall be made no later than the earlier
of (i) three years from the date of the transaction which requires such adjustment and (ii) the
Expiration Date.
16
(g) If as a result of an adjustment made pursuant to Section 11(a) hereof, the holder of any
Right thereafter exercised shall become entitled to receive any shares of capital stock of the
Company other than Preferred Shares, thereafter the number of such other shares so receivable upon
exercise of any Right shall be subject to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to the shares contained in this
Section 11 and the provisions of Sections 7, 9, 10 and 14 hereof with respect to the Preferred
Shares shall apply on like terms to any such other shares.
(h) All Rights originally issued by the Company subsequent to any adjustment made to the
Purchase Price hereunder shall evidence the right to purchase, at the adjusted Purchase Price, the
number of one one-hundreths of a Preferred Share purchasable from time to time hereunder upon
exercise of the Rights, all subject to further adjustment as provided herein.
(i) Unless the Company shall have exercised its election as provided in Section 11(j) hereof,
upon each adjustment of the Purchase Price as a result of the calculations made in Sections 11(b)
and (c) hereof, each Right outstanding immediately prior to the making of such adjustment shall
thereafter evidence the right to purchase, at the adjusted Purchase Price, that number of one
one-hundreths of a Preferred Share (calculated to the nearest ten-thousandth) obtained by (i)
multiplying (x) the number of one one-hundreths of a Preferred Share covered by a Right immediately
prior to this adjustment by (y) the Purchase Price in effect immediately prior to such adjustment
of the Purchase Price and (ii) dividing the product so obtained by the Purchase Price in effect
immediately after such adjustment of the Purchase Price.
(j) The Company may elect, on or after the date of any adjustment of the Purchase Price, to
adjust the number of Rights in substitution for any adjustment in the number of one one-hundreths
of a Preferred Share purchasable upon the exercise of a Right. Each of the Rights outstanding
after such adjustment of the number of Rights shall be exercisable for the number of one
one-hundreth of a Preferred Share for which a Right was exercisable immediately prior to such
adjustment. Each Right held of record prior to such adjustment of the number of Rights shall
become that number of Rights (calculated to the nearest ten-thousandth) obtained by dividing the
Purchase Price in effect immediately prior to adjustment of the Purchase Price by the Purchase
Price in effect immediately after adjustment of the Purchase Price. The Company shall make a
public announcement of its election to adjust the number of Rights, indicating the record date for
the adjustment, and, if known at the time, the amount of the adjustment to be made. This record
date may be the date on which the Purchase Price is adjusted or any day thereafter, but, if the
Right Certificates have been issued, shall be at least 10 calendar days later than the date of the
public announcement. If Right Certificates have been issued, upon each adjustment of the number of
Rights pursuant to this Section 11(j), the Company shall, as promptly as practicable, cause to be
distributed to holders of record of Right Certificates on such record date Right Certificates
evidencing, subject to Section 14 hereof, the additional Rights to which such holders shall be
entitled as a result of such adjustment, or, at the option of the Company, shall cause to be
distributed to such holders of record in substitution and replacement for the Right Certificates
held by such holders prior to the date of adjustment, and upon surrender thereof, if required by
the Company, new Right Certificates evidencing all the Rights to which such holders shall be
entitled after such adjustment. Right Certificates so to be distributed shall be issued, executed
and countersigned in the manner provided for herein (and may bear, at the option of the Company,
the adjusted Purchase Price) and shall be registered in
17
the names of the holders of record of Right Certificates on the record date specified in the
public announcement.
(k) Irrespective of any adjustment or change in the Purchase Price or the number or type of
shares issuable upon the exercise of the Rights, the Right Certificates theretofore and thereafter
issued may continue to express the Purchase Price per share and the number of shares which were
expressed in the initial Right Certificate issued hereunder.
(l) Before taking any action that would cause an adjustment reducing the Purchase Price below
the then par value, if any, of the Preferred Shares issuable upon exercise of the Rights, the
Company shall take any corporate action which may, in the opinion of its counsel, be necessary in
order that the Company may validly and legally issue fully paid and nonassessable Preferred Shares
at such adjusted Purchase Price.
(m) In any case in which this Section 11 shall require that an adjustment in the Purchase
Price be made effective as of a record date for a specified event, the Company may elect to defer
until the occurrence of such event the issuing to the holder of any Right exercised after such
record date the Preferred Shares and other capital stock or securities of the Company, if any,
issuable upon such exercise over and above the Preferred Shares and other capital stock or
securities of the Company, if any, issuable upon such exercise on the basis of the Purchase Price
in effect prior to such adjustment; provided, however, that the Company shall
deliver to such holder a due ▇▇▇▇ or other appropriate instrument evidencing such holder’s right to
receive such additional shares upon the occurrence of the event requiring such adjustment.
(n) Anything in Sections 11 (a) through (m), inclusive, hereof to the contrary
notwithstanding, the Company shall be entitled to make such reductions in the Purchase Price, in
addition to those adjustments expressly required by this Section 11, as and to the extent that it
in its sole discretion shall determine to be advisable in order that any consolidation or
subdivision of the Preferred Shares, issuance wholly for cash of any of the Preferred Shares at
less than the current market price, issuance wholly for cash of Preferred Shares or securities
which by their terms are convertible into or exchangeable for Preferred Shares, stock dividends or
issuance of rights, options or warrants referred to hereinabove in this Section 11, hereafter made
by the Company to holders of its Preferred Shares shall not be taxable to such shareholders.
(o) Notwithstanding any other provision of this Agreement, no adjustment to the Purchase
Price, the number of Preferred Shares (or fractions of a share) for which a Right is exercisable or
the number or Rights outstanding shall be made or be effective if such adjustment would have the
effect of reducing or limiting the benefits the holders of the Rights would have had absent such
adjustment, including, without limitation, the benefits under Sections 11(a)(ii) and 11(d) hereof,
unless the terms of this Agreement are amended so as to preserve such benefits.
Section 12. Certificate of Adjusted Purchase Price or Number of Shares. Whenever an
adjustment is made as provided in Section 11 hereof, the Company shall promptly prepare a
certificate setting forth such adjustment, (including a description of any Rights which have become
void as a result thereof), and a brief statement of the facts accounting for such adjustment and
promptly file with the Rights Agent and with each transfer agent for the
18
Common Shares or Preferred Shares a copy of such certificate. The Rights Agent shall be fully
protected in relying on any such certificate and on any adjustment therein contained and shall not
be obligated or responsible for calculating any adjustment nor shall it be deemed to have knowledge
of such adjustment unless and until it shall have received such certificate.
Section 13. Notice of Adjusted Purchase Price or Number or Type of Shares to Holders of
Rights. Whenever an adjustment is made as provided in Section 11 hereof after the Distribution
Date, the Company shall mail a brief summary of such adjustment to each holder of a Right
Certificate in accordance with Section 25 hereof.
Section 14. Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue fractions of Rights or to distribute Right
Certificates which evidence fractional Rights. In lieu of such fractional Rights, there shall be
paid as promptly as practicable to the registered holders of the Right Certificates with regard to
which such fractional Rights would otherwise be issuable, an amount in cash equal to the same
fraction of the current market value of a whole Right. For the purposes of this Section 14(a), the
current market value of a whole Right shall be the closing price of the Rights for the Trading Day
immediately prior to the date on which such fractional Rights would have been otherwise issuable.
The closing price for any day shall be the last sale price, regular way, or, in case no such sale
takes place on such day, the average of the closing bid and asked prices, regular way, in either
case as reported in the principal consolidated transaction reporting system with respect to
securities listed or admitted to trading on the New York Stock Exchange or, if the Rights are not
listed or admitted to trading on the New York Stock Exchange, as reported in the principal
consolidated transaction reporting system with respect to securities listed on the principal
national securities exchange on which the Rights are listed or admitted to trading or, if the
Rights are not listed or admitted to trading on any national securities exchange, the last quoted
price or, if not so quoted, the average of the high bid and low asked prices in the
over-the-counter market, as reported by Nasdaq or such other system then in use or, if on any such
date the Rights are not quoted by any such organization, the average of the closing bid and asked
prices as furnished by a professional market maker making a market in the Rights selected by the
Directors of the Company. If on any such date no such market maker is making a market in the Rights
the fair value of the Rights on such date as determined in good faith by the Directors of the
Company shall be used and shall be conclusive for all purposes.
(b) The Company shall not be required to issue fractions of shares (other than fractions which
are multiples of one one-hundreth of a Preferred Share) upon exercise of the Rights or to
distribute certificates which evidence fractional shares. Fractions of Preferred Shares in integral
multiples of one one-hundreth of a Preferred Share may, at the election of the Company, be
evidenced by depositary receipts, pursuant to an appropriate agreement between the Company and a
depositary selected by it, provided that such agreement shall provide that the holders of such
depositary receipts shall have all the rights, privileges and preferences to which they are
entitled as beneficial owners of Preferred Shares. In lieu of fractional shares that are not
integral multiples of one one-hundreth of a Preferred Share, the Company may pay to the registered
holders of Right Certificates at the time such Rights are exercised as herein provided an amount in
cash equal to the same fraction of the current market value of one Preferred Share. For purposes
of this Section 14(b), the current market value of a Preferred Share shall be
19
determined pursuant to the second sentence of Section 11(e) hereof for the Trading Day
immediately prior to the date of such exercise or exchange; provided, however,
that, if the Preferred Shares are not publicly held or not so listed or traded, or not the subject
of available bid and asked quotes, “current market value” shall mean the fair value per share as
determined in good faith by the Directors, whose determination shall be described in a statement
filed with the Rights Agent and shall be conclusive for all purposes.
(c) The holder of a Right by the acceptance of the Rights expressly waives his right to
receive any fractional Rights or any fractional shares upon exercise or exchange of a Right.
Section 15. Rights of Action. All rights of action in respect of this Agreement, excepting
the rights of action given to the Rights Agent under Section 18, are vested in the respective
registered holders of the Right Certificates (and, prior to the Distribution Date, the registered
holders of Common Shares); and any registered holder of any Right Certificate (or, prior to the
Distribution Date, of Common Shares), without the consent of the Rights Agent or of the holder of
any other Rights Certificate (or, prior to the Distribution Date, of Common Shares), may, in his
own behalf and for his own benefit, enforce, and may institute and maintain any suit, action or
proceeding against the Company to enforce, or otherwise act in respect of, his right to exercise
the Rights evidenced by such Right Certificate in the manner provided in such Right Certificate and
in this Agreement. Without limiting the foregoing or any remedies available to the holders of
Rights, it is specifically acknowledged that the holders of Rights would not have an adequate
remedy at law for any breach of this Agreement and will be entitled to specific performance of the
obligations under this Agreement, and injunctive relief against actual or threatened violations of
the obligations of any Person subject to this Agreement.
Section 16. Agreement of Rights Holders. Every holder of a Right by accepting the same
consents and agrees with the Company and the Rights Agent and with every other holder of a Right
that:
(a) prior to the Distribution Date, the Rights will be transferable only in connection with
the transfer of Common Shares;
(b) after the Distribution Date, the Right Certificates are transferable only on the registry
books of the Rights Agent if surrendered at the principal office of the Rights Agent designated for
such purpose, duly endorsed or accompanied by a proper instrument of transfer;
(c) the Company and the Rights Agent may deem and treat the person in whose name the Right
Certificate (or, prior to the Distribution Date, the associated Common Share certificate) is
registered as the absolute owner thereof and of the Rights evidenced thereby (notwithstanding any
notations of ownership or writing on the Right Certificate or the associated Common Share
certificate made by anyone other than the Company or the Rights Agent) for all purposes whatsoever,
and neither the Company nor the Rights Agent shall be affected by any notice to the contrary;
20
(d) Such holder expressly waives any right to receive fractional Rights and any fractional
securities upon exercise or exchange of a Right, except as otherwise provided in Section 14; and
(e) Notwithstanding anything in this Agreement to the contrary, neither the Company nor the
Rights Agent shall have any liability to any holder of a Right or other Person as a result of its
inability to perform any of its obligations under this Agreement by reason of any preliminary or
permanent injunction or other order, decree or ruling issued by a court of competent jurisdiction
or by a governmental, regulatory or administrative agency or commission, or any statute, rule,
regulation or executive order promulgated or enacted by any governmental authority, prohibiting or
otherwise restraining performance of such obligation; provided, however, that the
Company shall use its best efforts to have any such order, decree or ruling lifted or otherwise
overturned as soon as possible.
Section 17. Right Certificate Holder Not Deemed a Shareholder. No holder, as such, of any
Right Certificate shall be entitled to vote, receive dividends or be deemed for any purpose the
holder of Preferred Shares or any other securities of the Company which may at any time be issuable
on the exercise of the Rights represented thereby, nor shall anything contained herein or in any
Right Certificate be construed to confer upon the holder of any Right Certificate, as such, any of
the rights of a shareholder of the Company or any right to vote for the election of directors or
upon any matter submitted to shareholders at any meeting thereof, or to give or withhold consent to
any corporate action, or to receive notice of meetings or other actions affecting shareholders
(except as provided in Section 24 hereof), or to receive dividends or subscription rights, or
otherwise, until the Right or Rights evidenced by such Right Certificate shall have been exercised
in accordance with the provisions hereof or exchanged pursuant to the provisions of Section 27
hereof.
Section 18. Concerning the Rights Agent. The Company agrees to pay to the Rights Agent
reasonable compensation for all services rendered by it hereunder and, from time to time, on demand
of the Rights Agent, its reasonable expenses and counsel fees and disbursements and other
disbursements incurred in the administration and execution of this Agreement and the exercise and
performance of its duties hereunder. The Company also agrees to indemnify the Rights Agent for, and
to hold it harmless against, any loss, liability or expense, incurred without negligence, bad faith
or willful misconduct on the part of the Rights Agent, for anything done or omitted by the Rights
Agent in connection with the acceptance and administration of this Agreement, including the costs
and expenses of defending against any claim of liability in the premises. The Rights Agent shall be
protected and shall incur no liability for or in respect of any action taken, suffered or omitted
by it in connection with its administration of this Agreement in reliance upon any Right
Certificate or certificate for Preferred Shares or for other securities of the Company, instrument
of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, direction,
consent, certificate, statement, or other paper or document believed by it to be genuine and to be
signed, executed and, where necessary, verified or acknowledged, by the proper Person or Persons.
21
Section 19. Merger or Consolidation or Change of Name of Rights Agent.
(a) Any corporation into which the Rights Agent or any successor Rights Agent may be merged or
with which it may be consolidated, or any corporation resulting from any merger or consolidation to
which the Rights Agent or any successor Rights Agent shall be a party, or any corporation
succeeding to the corporate trust business of the Rights Agent or any successor Rights Agent, shall
be the successor to the Rights Agent under this Agreement without the execution or filing of any
paper or any further act on the part of any of the parties hereto, provided that such corporation
would be eligible for appointment as a successor Rights Agent under the provisions of Section 21
hereof. In case at the time such successor Rights Agent shall succeed to the agency created by this
Agreement, any of the Right Certificates shall have been countersigned but not delivered, any such
successor Rights Agent may adopt the countersignature of the predecessor Rights Agent and deliver
such Right Certificates so countersigned; and in case at that time any of the Rights Certificates
shall not have been countersigned, any successor Rights Agent may countersign such Right
Certificates either in the name of the predecessor Rights Agent or in the name of the successor
Rights Agent; and in all such cases such Right Certificates shall have the full force provided in
the Right Certificates and in this Agreement.
(b) In case at any time the name of the Rights Agent shall be changed and at such time any of
the Right Certificates shall have been countersigned but not delivered, the Rights Agent may adopt
the countersignature under its prior name and deliver Right Certificates so countersigned; and in
case at that time any of the Right Certificates shall not have been countersigned, the Rights Agent
may countersign such Right Certificates either in its prior name or in its changed name; and in all
such cases such Right Certificates shall have the full force provided in the Right Certificates and
in this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent undertakes the duties and obligations
imposed by this Agreement upon the following terms and conditions, by all of which the Company and
the holders of Right Certificates, by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the
Company), and the opinion of such counsel shall be full and complete authorization and protection
to the Rights Agent as to any action taken or omitted by it in good faith and in accordance with
such opinion.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem
it necessary or desirable that any fact or matter be proved or established by the Company prior to
taking or suffering any action hereunder, such fact or matter (unless other evidence in respect
thereof be herein specifically prescribed) may be deemed to be conclusively proved and established
by a certificate signed by any one of the Chairman of the Board, the President, any Vice President,
the Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary of the Company and
delivered to the Rights Agent; and such certificate shall be full authorization to the Rights Agent
for any action taken or suffered in good faith by it under the provisions of this Agreement in
reliance upon such certificate.
22
(c) The Rights Agent shall be liable hereunder only for its own negligence, bad faith or
willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or
recitals contained in this Agreement or in the Right Certificates (except its countersignature
thereof) or be required to verify the same, but all such statements and recitals are and shall be
deemed to have been made by the Company only.
(e) The Rights Agent shall not be under any responsibility in respect of the validity of this
Agreement or the execution and delivery hereof (except the due execution and delivery hereof by the
Rights Agent) or in respect of the validity or execution of any Right Certificate (except its
countersignature hereof); nor shall it be responsible for any breach by the Company of any covenant
or condition contained in this Agreement or in any Right Certificate; nor shall it be responsible
for any adjustment required under the provisions of Section 11 hereof (including any adjustment
which results in Rights becoming void) or responsible for the manner, method or amount of any such
adjustment or the ascertaining of the existence of facts that would require any such adjustment
(except with respect to the exercise of Rights evidenced by Right Certificates after actual notice
of any such adjustment or voidance); nor shall it by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of any Common Shares and/or
Preferred Shares to be issued pursuant to this Agreement or any Right Certificate or as to whether
any Common Shares and/or Preferred Shares will, when issued, be validly authorized and issued,
fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and deliver or cause to be
performed, executed, acknowledged and delivered all such further and other acts, instruments and
assurances as may reasonably be required by the Rights Agent for the carrying out or performing by
the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to
the performance of its duties hereunder from any one of the Chairman of the Board, the President,
any Vice President, the Secretary, any Assistant Secretary, the Treasurer or any Assistant
Treasurer of the Company, and to apply to such officers for advice or instructions in connection
with its duties, and it shall not be liable for any action taken or suffered to be taken by it in
good faith in accordance with instructions of any such officer. Any application by the Rights
Agent for written instructions from the Company may, at the option of the Rights Agent, set forth
in writing any action proposed to be taken or omitted by the Rights Agent under this Agreement and
the date on or after which such action shall be taken or such omission shall be effective. The
Rights Agent shall not be liable for any action taken by, or omission of, the Rights Agent in
accordance with a proposal included in any such application on or after the date specified in such
application (which date shall not be less than ten Business Days after the date any officer of the
Company actually receives such application, unless any such officer shall have consented in writing
to an earlier date) unless, prior to taking any such action (or the effective date in the case of
an omission), the Rights Agent shall have received written instructions in response to such
application subject to the proposed action or omission and/or specifying the action to be taken or
omitted.
23
(h) The Rights Agent and any shareholder, director, officer or employee of the Rights Agent
may buy, sell or deal in any of the Rights or other securities of the Company or become pecuniarily
interested in any transaction in which the Company may be interested, or contract with or lend
money to the Company or otherwise act as fully and freely as though it were not Rights Agent under
this Agreement. Nothing herein shall preclude the Rights Agent from acting in any other capacity
for the Company or for any other legal entity.
(i) The Rights Agent shall promptly remit to the Company any funds paid to it upon exercise of
the Rights pursuant to Section 7 hereof.
(j) If, with respect to any Right Certificate surrendered to the Rights Agent for exercise,
transfer, split up, combination or exchange, either (i) the certificate attached to the form of
assignment or form of election to purchase, as the case may be, has either not been completed or
indicates an affirmative response to clause 1 or 2 thereof, or (ii) any other actual or suspected
irregularity exists, the Rights Agent shall not take any further action with respect to such
requested exercise, transfer, split up, combination or exchange, without first consulting with the
Company, and will thereafter take further action with respect thereto only in accordance with the
Company’s written instructions.
(k) No provision of this Agreement shall require the Rights Agent to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of its duties hereunder
or in the exercise of its rights if there shall be reasonable grounds for believing that repayment
of such funds or adequate indemnification against such risk or liability is not reasonably assured
to it.
Section 21. Change of Rights Agent. The Rights Agent or any successor Rights Agent may
resign and be discharged from its duties under this Agreement upon 30 days’ notice in writing
mailed to the Company and to each transfer agent of the Common Shares or Preferred Shares by
registered or certified mail, and, at the expense of the Company, to the holders of the Right
Certificates by first-class mail. The Company may remove the Rights Agent or any successor Rights
Agent upon 30 days’ notice in writing, mailed to the Rights Agent or successor Rights Agent, as the
case may be, and to each transfer agent of the Common Shares or Preferred Shares by registered or
certified mail, and to the holders of the Right Certificates by first-class mail. If the Rights
Agent shall resign or be removed or shall otherwise become incapable of acting, the Company shall
appoint a successor to the Rights Agent. If the Company shall fail to make such appointment within
a period of 30 days after giving notice of such removal or after it has been notified in writing of
such resignation or incapacity by the resigning or incapacitated Rights Agent or by the holder of a
Right Certificate (who shall, with such notice, submit his Right Certificate for inspection by the
Company), then the registered holder of any Right Certificate may apply to any court of competent
jurisdiction for the appointment of a new Rights Agent. Any successor Rights Agent, whether
appointed by the Company or by such a court, shall be a corporation or other legal entity organized
and doing business under the laws of the United States (or of any state of the United States so
long as such corporation is authorized to do business as a banking institution in such state), in
good standing, which is authorized under such laws to exercise corporate trust powers or stock
transfer powers and is subject to supervision or examination by federal or state authority and
which has at the time of its appointment as Rights Agent a combined capital and surplus of at least
$50 million and which
24
shall otherwise meet any requirements imposed by the New York Stock Exchange on transfer agents and
registrars. After appointment, the successor Rights Agent shall be vested with the same powers,
rights, duties and responsibilities as if it had been originally named as Rights Agent without
further act or deed; but the predecessor Rights Agent shall deliver and transfer to the successor
Rights Agent any property at the time held by it hereunder, and execute and deliver any further
assurance, conveyance, act or deed necessary for the purpose. Not later than the effective date of
any such appointment, the Company shall file notice thereof in writing with the predecessor Rights
Agent and each transfer agent of the Common Shares or Preferred Shares, and mail a notice thereof
in writing to the registered holders of the Right Certificates. Failure to give any notice provided
for in this Section 21, however, or any defect therein, shall not affect the legality or validity
of the resignation or removal of the Rights Agent or the appointment of the successor Rights Agent,
as the case may be.
Section 22. Issuance of New Right Certificates. Notwithstanding any of the provisions of
this Agreement or of the Rights to the contrary, the Company may, at its option, issue new Right
Certificates evidencing Rights in such form as may be approved by its Directors to reflect any
adjustment or change in the Purchase Price and the number or kind or class of shares or other
securities or property purchasable under the Right Certificates made in accordance with the
provisions of this Agreement. In addition, in connection with the issuance or sale by the Company
of Common Shares following the Distribution Date and prior to the Expiration Date, the Company (a)
shall, with respect to Common Shares so issued or sold pursuant to the exercise, exchange or
conversion of securities (other than Rights) issued prior to the Distribution Date which are
exercisable for or exchangeable for, or convertible into, Common Shares, and (b) may, in any other
case, if deemed necessary, appropriate or desirable by the Directors of the Company, issue Right
Certificates representing an equivalent number of Rights as would have been issued in respect of
such Common Shares if they had been issued or sold prior to the Distribution Date, as appropriately
adjusted as provided herein as if they had been so issued or sold; provided,
however, that (i) no such Right Certificate shall be issued if, and to the extent that, in
its good faith judgment the Directors of the Company shall have determined that the issuance of
such Right Certificate could have a material adverse tax consequence to the Company or to the
Person to whom or which such Right Certificate otherwise would be issued, and (ii) no such Right
Certificate shall be issued if, and to the extent that, appropriate adjustment otherwise shall have
been made in lieu of the issuance thereof.
Section 23. Redemption.
(a) Prior to the Expiration Date, the Directors of the Company may, at their option, redeem
all but not less than all of 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 date hereof (the “Redemption Price”), at any time prior to the close of business on the
Distribution Date.
(b) Immediately upon the effective date of the action of the Directors of the Company ordering
the redemption of the Rights, 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, without interest thereon. Promptly after the effectiveness of the
redemption of the Rights, the Company shall publicly announce such action
25
and, within ten calendar days thereafter, will give notice of such redemption to the holders
of the then-outstanding Rights by mailing such notice to all such holders 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; provided, however,
that the failure to give, or any defect in, any such notice shall not affect the validity of the
redemption of the Rights. 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 may, at its option,
pay the Redemption Price in cash, Common Shares (based upon the current per share market price of
the Common Shares (determined pursuant to Section 11(e) hereof) at the time of redemption) or any
other form of consideration deemed appropriate by the Directors of the Company (based upon the fair
market value of such other consideration, determined by the Directors of the Company in good faith)
or any combination thereof. The Company may, at its option, combine the payment of the Redemption
Price with any other payment being made concurrently to holders of Common Shares and, to the extent
that any such other payment is discretionary, may reduce the amount thereof on account of the
concurrent payment of the Redemption Price. If legal or contractual restrictions prevent the
Company from paying the Redemption Price (in the form of consideration deemed appropriate by the
Directors) at the time of redemption, the Company shall pay the Redemption Price, without interest,
promptly after such time as the Company ceases to be so prevented from paying the Redemption Price.
(c) At any time, the Directors of the Company may relinquish their rights to redeem the Rights
under paragraphs (a) or (b) above, or both, by duly adopting a resolution to that effect.
Immediately upon adoption of such resolution, the rights of the Directors under the portions of
this Section 23 specified in such resolution shall terminate without further action and without any
notice.
Section 24. Notice of Certain Events.
(a) In case, after the Distribution Date, the Company shall propose (i) to pay any dividend
payable in stock of any class to the holders of Preferred Shares or to make any other distribution
to the holders of Preferred Shares (other than a regular periodic cash dividend) or (ii) to offer
to the holders of Common Shares rights, options or warrants to subscribe for or to purchase any
additional Preferred Shares or shares of stock of any class or any other securities, rights or
options, or (iii) to effect any reclassification of its Preferred Shares (other than a
reclassification involving only the subdivision of outstanding Preferred Shares), or (iv) to effect
any consolidation or merger into or with, or to effect any sale or other transfer (or to permit one
or more of its Subsidiaries to effect any sale or other transfer), in one or more transactions, of
more than 50% of the assets or earning power of the Company and its Subsidiaries, taken as a whole,
to any other Person or Persons, or (v) to effect the liquidation, dissolution or winding up of the
Company, then, in each such case, the Company shall give to each holder of a Right Certificate, in
accordance with Section 25 hereof, a notice of such proposed action, which shall specify the record
date for the purposes of such stock dividend, distribution or offering of rights, options or
warrants, or the date on which such reclassification, consolidation, merger, sale, transfer,
liquidation, dissolution or winding up is to take place and the date of participation therein by
the holders of the Common Shares and/or Preferred Shares, if any such date is to be fixed, and such
notice shall be so given, in the case of any action covered by clause (i) or (ii)
26
above, at least 20 calendar days prior to the record date for determining holders of the
Preferred Shares for purposes of such action, and, in the case of any such other action, at least
20 calendar days prior to the date of the taking of such proposed action or the date of
participation therein by the holders of the Common Shares and/or Preferred Shares, whichever shall
be the earlier.
(b) In case any Triggering Event shall occur, then, in any such case, the Company shall as
soon as practicable thereafter give to the Rights Agent and each holder of a Right Certificate, in
accordance with Section 25 hereof, a notice of the occurrence of such event, which shall specify
the event and the consequences of the event to holders of Rights.
Section 25. Notices.
(a) Notices or demands authorized by this Agreement to be given or made by the Rights Agent or
by the holder of any Right Certificate to or on the Company shall be sufficiently given or made if
sent by first-class mail, postage prepaid, addressed (until another address is filed in writing
with the Rights Agent) as follows:
LNB Bancorp, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Secretary
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Secretary
(b) Subject to the provisions of Section 21 hereof, any notice or demand authorized by this
Agreement to be given or made by the Company or by the holder of any Right Certificate to or on the
Rights Agent shall be sufficiently given or made if sent by registered or certified mail and shall
be deemed given upon receipt, addressed (until another address is filed in writing with the
Company) as follows:
Registrar and Transfer Company
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Vice President, Corporate Relations
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Vice President, Corporate Relations
(c) Notices or demands authorized by this Agreement to be given or made by the Company or the
Rights Agent to the holder of any Right Certificate shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed to such holder at the address of such holder as shown
on the registry books of the Rights Agent.
Section 26. Supplements and Amendments. Prior to the Distribution Date and subject to
Section 11 and the last sentence of this Section 26, if the Company so directs, the Company and the
Rights Agent shall, at the expense of the Company, supplement or amend any provision of this
Agreement without the approval of any holders of certificates representing Common Shares. From and
after the Distribution Date and subject to the last sentence of this Section 26, if the Company so
directs, the Company and the Rights Agent shall supplement or amend this Agreement without the
approval of any holders of Right Certificates in order (i) to cure any ambiguity, (ii) to correct
or supplement any provision contained herein which may be defective or inconsistent with any other
provisions herein, (iii) to shorten or lengthen any time
27
period hereunder, or (iv) to supplement or amend the provisions hereunder in any manner which the
Company may deem desirable, including, without limitation, the addition of other events requiring
adjustment to the Rights under Sections 11(a)(ii) or 11(d) hereof or procedures relating to the
redemption of the Rights, which supplement or amendment shall not, in the good faith determination
of the Directors of the Company, adversely affect the interests of the holders of Right
Certificates (other than an Acquiring Person or an Affiliate or Associate of an Acquiring Person).
Upon the delivery of a certificate from an officer of the Company which states that the proposed
supplement or amendment is in compliance with the terms of this Section 26, the Rights Agent shall
execute such supplement or amendment; provided, however, that the failure or
refusal of the Rights Agent to execute such supplement or amendment shall not affect the validity
of any supplement or amendment adopted by the Company, any of which shall be effective in
accordance with the terms thereof, provided, however, that notwithstanding anything
in this Agreement to the contrary, no supplement or amendment that changes the rights and duties of
the Rights Agent under this Agreement will be effective against the Rights Agent without the
execution of such supplement or amendment by the Rights Agent. Notwithstanding anything in this
Agreement to the contrary, no supplement or amendment shall be made which (x) changes the stated
Redemption Price, (y) reduces the number of securities for which a Right is then exercisable, or
(z) modifies a time period relating to when the Rights may be redeemed at such time as the Rights
are not then redeemable.
Section 27. Exchange.
(a) The Directors of the Company may, at their option, at any time after the Distribution
Date, exchange all or part of the then-outstanding and exercisable Rights (which shall not include
Rights that have become void pursuant to the provisions of Section 11(a)(ii) hereof) for Common
Shares at an exchange ratio of one Common Share (or a lesser ratio as determined by the Board of
Directors, if the Company does not have sufficient authorized and unreserved Common Shares) per
Right, appropriately adjusted to reflect any stock split, stock dividend or similar transaction
occurring after the date hereof (such exchange ratio being hereinafter referred to as the “Exchange
Ratio”). Notwithstanding the foregoing, the Directors shall not be empowered to effect such
exchange at any time after any Person (other than the Company, any Subsidiary, any employee benefit
plan of the Company or any Subsidiary, or any entity holding Common Shares for or pursuant to the
terms of any such plan), who or which, together with all Affiliates and Associates of such Person,
becomes the Beneficial Owner of 50% or more of the shares of Common Shares outstanding.
(b) Immediately upon the effective date of the action of the Directors of the Company ordering
the exchange of any Rights pursuant to Section 27(a) hereof, and without any further action and
without any notice, the right to exercise such Rights shall terminate and the only right with
respect to such Rights thereafter of the holder of such Rights shall be to receive that number of
Common Shares equal to the number of such Rights held by such holder multiplied by the Exchange
Ratio. Promptly after the action of the Directors of the Company ordering the exchange of any
Rights pursuant to Section 27(a) hereof, the Company shall publicly announce such action, and
within 10 calendar days thereafter shall give notice of any such exchange to all of the holders of
such Rights at their last addresses as they appear upon the registry books of the Rights Agent;
provided, however, that the failure to give, or any defect in, such notice shall
not affect the validity of such exchange. Any notice which is mailed in the
28
manner herein provided shall be deemed given, whether or not the holder receives the notice.
Each such notice of exchange shall state the method by which the exchange of the Common Shares for
Rights will be effected and, in the event of any partial exchange, the number of Rights which will
be exchanged. Each such notice shall be accompanied by a certificate of exchange to be completed
by each holder of Rights pursuant to Section 27(d) hereof. Any partial exchange shall be effected
pro rata based on the number of Rights (other than Rights which have become void pursuant to the
provisions of Section 11(a)(ii) hereof) held by each holder of Rights.
(c) In any exchange pursuant to this Section 27, the Company, at its option, may substitute
for any Common Share exchangeable for a Right, (i) cash, (ii) debt securities of the company, (iii)
other assets, or (iv) any combination of the foregoing, in any event having an aggregate value
which the Directors of the Company shall have determined in good faith to be equal to the current
market value of one Common Share (determined pursuant to Section 11(e) hereof) on the Trading Day
immediately preceding the date of exchange pursuant to this Section 27.
(d) Notwithstanding anything to the contrary in the foregoing, no holder of Rights shall be
entitled to receive Common Shares (or any substitute therefor pursuant to the provisions of Section
27(c) hereof) in exchange for such holder’s Rights pursuant to this Section 27 unless and until
such holder submits a certificate of exchange (substantially in the form of the Certificate of
Exchange included in Exhibit B hereto) certifying that such holder is not or, after due
inquiry and to the best of such holder’s knowledge, did not receive such holder’s Rights from a
Person who is or was, an “Acquiring Person” as set forth in this Agreement.
(e) As promptly as reasonably practicable after the Distribution Date and until all Rights
have been exchanged as set forth in this Section 27, the Company shall make provision for a number
of Common Shares equal to at least three percent of the number of Common Shares for which Rights
may be exchanged pursuant to this Section 27 to be held in trust by a third party (to be mutually
agreed upon by the Company and the Rights Agent) for the benefit of eligible holders of Rights who
are not “Acquiring Persons” as set forth in this Agreement and who, or whose brokers, did not
provide the certification required by this Section 27 by a date (to be mutually agreed upon by the
Company and the Rights Agent) following the Distribution Date.
Section 28. Successors. All the covenants and provisions of this Agreement by or for the
benefit of the Company or the Rights Agent shall bind and inure to the benefit of their respective
successors and assigns hereunder.
Section 29. Benefits of this Agreement. Nothing in this Agreement shall be construed to
give to any Person other than the Company, the Rights Agent and the registered holders of the Right
Certificates (and, prior to the Distribution Date, the Common Shares) any legal or equitable right,
remedy or claim under this Agreement; but this Agreement shall be for the sole and exclusive
benefit of the Company, the Rights Agent and the registered holders of the Right Certificates (or
prior to the Distribution Date, the Common Shares).
Section 30. Determinations and Actions by Directors. For all purposes of this Agreement,
any calculation of the number of Common Shares of the Company outstanding at any particular time,
including for purposes of determining a particular percentage of such
29
outstanding Common Shares of the Company of which any Person is the Beneficial Owner, will be made
in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations
under the Exchange Act. The Directors will have the exclusive power and authority to administer
this Agreement and to exercise all rights and powers specifically granted to the Directors or to
the Company, or as may be necessary or advisable in the administration of this Agreement, including
without limitation the right and power to (i) interpret the provisions of this Agreement (including
without limitation Section 26, this Section 30 and other provisions hereof relating to powers or
authority hereunder) and (ii) make all determinations deemed necessary or advisable for the
administration of this Agreement (including without limitation any determination contemplated by
Section 1(a) or any determination as to whether particular Rights shall have become void). All
such actions, calculations, interpretations and determinations (including, for purposes of clause
(y) below, any omission with respect to any of the foregoing) which are done or made by the
Directors in good faith will be (x) final, conclusive and binding on the Company, the Rights Agent,
the holders of the Rights and all other parties and (y) not subject the Directors to any liability
to any Person, including without limitation the Rights Agent and the holders of the Rights.
Section 31. Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired or invalidated;
provided, however, that nothing contained in this Section 31 shall affect the
ability of the Company under the provisions of Section 26 to supplement or amend this Agreement to
replace such invalid, void or unenforceable term, provision, covenant or restriction with a legal,
valid and enforceable term, provision, covenant or restriction.
Section 32. Governing Law. This Agreement and each Right Certificate issued hereunder
shall be deemed to be a contract made under the laws of the State of Ohio and for all purposes
shall be governed by and construed in accordance with the laws of such State applicable to
contracts to be made and performed entirely within such State.
Section 33. Counterparts. This Agreement 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.
Section 34. Descriptive Headings. Descriptive headings of the several Sections of this
Agreement are inserted for convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
30
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and
their respective corporate seals to be hereunto affixed and attested, effective as of the 25th day
of October, 2010.
| LNB BANCORP, INC. |
||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Title: | President and Chief Executive Officer | |||
| REGISTRAR AND TRANSFER COMPANY, as Rights Agent |
||||
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | |||
| Title: | Vice President Stock Transfer Operations |
|||
31
Exhibit A
FORM OF CERTIFICATE OF AMENDMENT
TO THE AMENDED ARTICLES OF INCORPORATION
OF LNB BANCORP, INC.
TO THE AMENDED ARTICLES OF INCORPORATION
OF LNB BANCORP, INC.
RESOLVED, that pursuant to the authority granted to and vested in the Board of Directors of
the Corporation (the “Board”), and in accordance with Section 1701.70(B)(1) of the Ohio Revised
Code and Article FOURTH of the Corporation’s Second Amended Articles of Incorporation, as amended
(the “Articles”), the Board hereby amends and restates the terms of the Corporation’s Series A
Voting Preferred Shares, without par value, reduces the authorized number of shares of the series
from 750,000 shares to 150,000 shares, and fixes and determines the preferences and rights of
shares of the series, and the qualifications, limitations and restrictions thereof, with the
Articles hereby amended to delete Part C of Article FOURTH of the Articles in its entirety and
replace it as follows:
C. SERIES A VOTING PREFERRED SHARES:
From the authorized number of Voting Preferred Shares of Corporation, there is established
hereby a series of Voting Preferred Shares designated as “Series A Voting Preferred Shares” that
shall have the terms set forth in this Part C. The number of Shares constituting the Series A
Voting Preferred Shares shall be 150,000. Such number of Shares may be increased or decreased by
resolution of the Board; provided, however, that no decrease shall reduce the number of Series A
Voting Preferred Shares to a number less than the number of Shares then outstanding plus the number
of Shares reserved for issuance upon the exercise of outstanding options, rights or warrants or
upon the conversion of any outstanding securities issued by the Company convertible into Series A
Voting Preferred Shares.
1. Dividends and Distribution.
(a) In preference to the holders of Common Shares and of any other junior Shares, but subject
to the prior and superior rights of the holders of the Corporation’s Fixed Rate Cumulative
Perpetual Preferred Stock, Series B, and any Shares of any other series of Voting Preferred Shares
ranking prior and superior to the Series A Voting Preferred Shares with respect to dividends, the
holders of Series A Voting Preferred Shares shall be entitled to receive, when, as and if declared
by the Board, out of funds of the Corporation legally available for the payment of dividends,
quarterly dividends payable in cash on the first Business Day of January, April, July and October
of each year (each such date being referred to herein as a “Quarterly Dividend Payment Date”, and
“Business Day” meaning any day except a Saturday, Sunday or any day on which banking institutions
in the State of Ohio are authorized or obligated by law or executive order to close), commencing on
the first Quarterly Dividend Payment Date after the first issuance of a Series A Voting Preferred
Share or fraction of a Series A Voting Preferred Share, in an amount per Share (rounded to the
nearest cent) equal to the greater of (a) $1.00, or (b) subject to the provision for adjustment
hereinafter set forth, 100 times the aggregate per Share amount of all cash dividends and 100 times
the aggregate per Share amount (payable in kind) of all non-cash dividends or other distributions,
other than a dividend payable in Common
A-1
Shares or a subdivision of the outstanding Common Shares (by reclassification or otherwise),
declared on the Common Shares since the immediately preceding Quarterly Dividend Payment Date or,
with respect to the first Quarterly Dividend Payment Date, since the first issuance of any Series A
Voting Preferred Share or fraction of a Series A Voting Preferred Share. In the event the
Corporation shall, on or after October 25, 2010 (the “Rights Declaration Date”), declare or pay any
dividend on the Common Shares payable in Common Shares, or effect a subdivision, combination or
consolidation of the outstanding Common Shares (by reclassification or otherwise than by payment of
a dividend in Common Shares) into a greater or lesser number of Common Shares, then in each such
case the amount to which holders of Series A Voting Preferred Shares were entitled immediately
prior to such event under clause (b) of the preceding sentence shall be adjusted by multiplying
such amount by a fraction, the numerator of which is the number of Common Shares outstanding
immediately after such event and the denominator of which is the number of Common Shares that were
outstanding immediately prior to such event. In the event the Corporation shall at any time
declare or pay any dividend on the Series A Voting Preferred Shares payable in Series A Voting
Preferred Shares, or effect a subdivision, combination or consolidation of the outstanding Series A
Voting Preferred Shares (by reclassification or otherwise than by payment of a dividend in Series A
Voting Preferred Shares) into a greater or lesser number of Series A Voting Preferred Shares, then
in each such case the amount to which holders of Series A Voting Preferred Shares were entitled
immediately prior to such event under clause (b) of the first sentence of this Section 1(a) shall
be adjusted by multiplying such amount by a fraction, the numerator of which is the number of
Series A Voting Preferred Shares that were outstanding immediately prior to such event and the
denominator of which is the number of Series A Voting Preferred Shares outstanding immediately
after such event.
(b) The Corporation shall declare a dividend or distribution on the Series A Voting Preferred
Shares as provided in paragraph (a) of this Section 1 immediately after it declares a dividend or
distribution on the Common Shares (other than a dividend payable in Common Shares) and the
Corporation shall pay such dividend or distribution on the Series A Voting Preferred Shares before
the dividend or distribution declared on the Common Shares is paid or set apart; provided that in
the event no dividend or distribution shall have been declared on the Common Shares during the
period between any Quarterly Dividend Payment Date and the next subsequent Quarterly Dividend
Payment Date, a dividend of $1.00 per Share on the Series A Voting Preferred Shares shall
nevertheless be payable on such subsequent Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and be cumulative on outstanding Series A Voting Preferred
Shares from the Quarterly Dividend Payment Date next preceding the date of issue of such Shares,
unless the date of issue of such Shares is prior to the record date for the first Quarterly
Dividend Payment Date, in which case dividends on such Shares shall begin to accrue from the date
of issue of such Shares, or unless the date of issue is a Quarterly Dividend Payment Date or is a
date after the record date for the determination of holders of Series A Voting Preferred Shares
entitled to receive a quarterly dividend and before such Quarterly Dividend Payment Date, in either
of which events such dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on the Series
A Voting Preferred Shares in an amount less than the total amount of such dividends at the time
accrued and payable on such Shares shall be
A-2
allocated pro rata on a Share-by-Share basis among all such Shares at the time outstanding.
The Board may fix a record date for the determination of holders of Series A Voting Preferred
Shares entitled to receive payment of a dividend or distribution declared thereon, which record
date shall be not more than 60 days prior to the date fixed for the payment thereof.
2. Voting Rights. The holders of Series A Voting Preferred Shares shall have the
following voting rights:
(a) Subject to the provision for adjustment hereinafter set forth, each Series A Voting
Preferred Share shall entitle the holder thereof to 100 votes on all matters submitted to a vote of
the shareholders of the Corporation. In the event the Corporation shall at any time declare or pay
any dividend on the Common Shares payable in Common Shares, or effect a subdivision, combination or
consolidation of the outstanding Common Shares (by reclassification or otherwise than by payment of
a dividend in Common Shares) into a greater or lesser number of Common Shares, then in each such
case the number of votes per Share to which holders of Series A Voting Preferred Shares were
entitled immediately prior to such event shall be adjusted by multiplying such number by a
fraction, the numerator of which is the number of Common Shares outstanding immediately after such
event and the denominator of which is the number of Common Shares that were outstanding immediately
prior to such event. In the event the Corporation shall at any time declare or pay any dividend on
the Series A Voting Preferred Shares payable in Series A Voting Preferred Shares, or effect a
subdivision, combination or consolidation of the outstanding Series A Voting Preferred Shares (by
reclassification or otherwise than by payment of a dividend in Series A Voting Preferred Shares)
into a greater or lesser number of Series A Voting Preferred Shares, then in each such case the
number of votes per Share to which holders of Series A Voting Preferred Shares were entitled
immediately prior to such event shall be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of Series A Voting Preferred Shares that were outstanding
immediately prior to such event and the denominator of which is the number of Series A Preferred
Shares outstanding immediately after such event.
(b) Except as otherwise provided in the Articles or by law, the holders of Series A Voting
Preferred Shares and the holders of Common Shares and any other capital stock of the Corporation
having general voting rights shall vote together as one class on all matters submitted to a vote of
shareholders of the Corporation.
(c) Except as set forth in the Articles, or as otherwise provided by law, the holders of
Series A Voting Preferred Shares shall have no voting rights.
3. Certain Restrictions.
(a) Whenever quarterly dividends or other dividends or distributions payable on the Series A
Voting Preferred Shares as provided in Section 1 are in arrears, thereafter and until all accrued
and unpaid dividends and distributions, whether or not declared, on Series A Voting Preferred
Shares outstanding shall have been paid in full, the Corporation shall not:
A-3
| (i) | declare or pay dividends, or make any other distributions, on any Shares ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Voting Preferred Shares; | ||
| (ii) | declare or pay dividends, or make any other distributions, on any Shares ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series A Voting Preferred Shares, except dividends paid ratably on the Series A Voting Preferred Shares and all such parity Shares on which dividends are payable or in arrears in proportion to the total amounts to which the holders of all such Shares are then entitled; | ||
| (iii) | redeem or purchase or otherwise acquire for consideration any Shares ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Voting Preferred Shares, provided that the Corporation may at any time redeem, purchase or otherwise acquire any such junior Shares in exchange for any Shares of the Corporation ranking junior (as to dividends and upon dissolution, liquidation or winding up) to the Series A Voting Preferred Shares; or | ||
| (iv) | redeem or purchase or otherwise acquire for consideration any Series A Voting Preferred Shares or any Shares ranking on a parity with the Series A Voting Preferred Shares, except in accordance with a purchase offer made in writing or by publication (as determined by the Board) to all holders of such Shares upon such terms as the Board, after consideration of the respective annual dividend rates and other relative rights and preferences of the respective series and classes, shall determine in good faith will result in fair and equitable treatment among the respective series or classes. |
(b) The Corporation shall not permit any subsidiary of the Corporation to purchase or
otherwise acquire for consideration any Shares of the Corporation unless the Corporation could,
under paragraph (a) of this Section 3, purchase or otherwise acquire such Shares at such time and
in such manner.
4. Reacquired Shares. Any Series A Voting Preferred Shares purchased or otherwise
acquired by the Corporation in any manner whatsoever shall be retired and cancelled promptly after
the acquisition thereof. All such Shares shall upon their cancellation become authorized but
unissued Voting Preferred Shares and may be reissued as part of a new series of Voting Preferred
Shares subject to the conditions and restrictions on issuance set forth in the Articles or as
otherwise required by law.
A-4
5. Liquidation, Dissolution or Winding Up.
(a) Upon any liquidation, dissolution or winding up of the Corporation, no distribution shall
be made (1) to the holders of Shares ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Voting Preferred Shares unless, prior thereto, the
holders of Series A Voting Preferred Shares shall have received $100 per Share, plus an amount
equal to accrued and unpaid dividends and distributions thereon, whether or not declared, to the
date of such payment, provided that the holders of Series A Voting Preferred Shares shall be
entitled to receive an aggregate amount per Share, subject to the provision for adjustment
hereinafter set forth, equal to 100 times the aggregate amount to be distributed per Share to
holders of Common Shares, or (2) to the holders of Shares ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the Series A Voting Preferred
Shares, except distributions made ratably on the Series A Voting Preferred Shares and all such
parity Shares in proportion to the total amounts to which the holders of all such Shares are
entitled upon such liquidation, dissolution or winding up.
(b) Neither the consolidation, merger or other business combination of the Corporation with or
into any other corporation nor the sale, lease, exchange or conveyance of all or any part of the
property, assets or business of the Corporation shall be deemed to be a liquidation, dissolution or
winding up of the Corporation for purposes of this Section 5.
(c) In the event the Corporation shall at any time declare or pay any dividend on the Common
Shares payable in Common Shares, or effect a subdivision, combination or consolidation of the
outstanding Common Shares (by reclassification or otherwise than by payment of a dividend in Common
Shares) into a greater or lesser number of Common Shares, then in each such case the aggregate
amount to which holders of Series A Voting Preferred Shares were entitled immediately prior to such
event under the proviso in clause (1) of paragraph (a) of this Section 5 shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the number of Common Shares
outstanding immediately after such event and the denominator of which is the number of Common
Shares that were outstanding immediately prior to such event. In the event the Corporation shall
at any time declare or pay any dividend on the Series A Voting Preferred Shares payable in Series A
Voting Preferred Shares, or effect a subdivision, combination or consolidation of the outstanding
Series A Voting Preferred Shares (by reclassification or otherwise than by payment of a dividend in
Series A Voting Preferred Shares) into a greater or lesser number of Series A Voting Preferred
Shares, then in each such case the aggregate amount to which holders of Series A Voting Preferred
Shares were entitled immediately prior to such event under the proviso in clause (1) of paragraph
(a) of this Section 5 shall be adjusted by multiplying such amount by a fraction, the numerator of
which is the number of Series A Voting Preferred Shares that were outstanding immediately prior to
such event and the denominator of which is the number of Series A Voting Preferred Shares
outstanding immediately after such event.
6. Consolidation, Merger, etc. Notwithstanding anything to the contrary contained in
the Articles, in case the Corporation shall enter into any consolidation, merger, combination or
other transaction in which the Common Shares are exchanged for or changed into other shares or
securities, cash and/or any other property, then in any such case each Series A Voting Preferred
Share shall at the same time be similarly exchanged or changed into an amount
A-5
per Share, subject to the provision for adjustment hereinafter set forth, equal to 100 times
the aggregate amount of shares or securities, cash and/or any other property (payable in kind), as
the case may be, into which or for which each Common Share is changed or exchanged. If, at any
time on or after the Rights Declaration Date, the Corporation shall declare or pay any dividend on
the Common Shares payable in Common Shares, or effect a subdivision, combination or consolidation
of the outstanding Common Shares (by reclassification or otherwise than by payment of a dividend in
Common Shares) into a greater or lesser number of Common Shares, then in each such case the amount
set forth in the preceding sentence with respect to the exchange or change of Series A Voting
Preferred Shares shall be adjusted by multiplying such amount by a fraction, the numerator of which
is the number of Common Shares outstanding immediately after such event and the denominator of
which is the number of Common Shares that were outstanding immediately prior to such event. In the
event the Corporation shall at any time declare or pay any dividend on the Series A Voting
Preferred Shares payable in Series A Voting Preferred Shares, or effect a subdivision, combination
or consolidation of the outstanding Series A Voting Preferred Shares (by reclassification or
otherwise than by payment of a dividend in Series A Voting Preferred Shares) into a greater or
lesser number of Series A Voting Preferred Shares, then in each such case the amount set forth in
the first sentence of this Section 6 with respect to the exchange or change of Series A Voting
Preferred Shares shall be adjusted by multiplying such amount by a fraction, the numerator of which
is the number of Series A Voting Preferred Shares that were outstanding immediately prior to such
event and the denominator of which is the number of Series A Voting Preferred Shares outstanding
immediately after such event.
7. No Redemption. The Series A Voting Preferred Shares shall not be redeemable.
8. Rank. The Series A Voting Preferred Shares shall rank, with respect to the payment
of dividends and the distribution of assets in the event of any dissolution, liquidation or winding
up of the Corporation, junior to the Corporation’s Fixed Rate Cumulative Perpetual Preferred Stock,
Series B, and all other series of the Company’s Voting Preferred Shares, unless the terms of any
such series shall provide otherwise.
9. Amendment. At such time as any Series A Voting Preferred Shares are outstanding,
the Articles shall not be amended in any manner which would materially alter or change the powers,
preferences or special rights of the Series A Voting Preferred Shares so as to affect them
adversely without the affirmative vote of the holders of at least two-thirds of the outstanding
Series A Voting Preferred Shares, voting together as a single class.
10. Fractional Shares. Series A Voting Preferred Shares may be issued in fractions of
a Share which shall entitle the holder, in proportion to such holder’s fractional Shares, to
exercise voting rights, receive dividends, participate in distributions and have the benefit of all
other rights of holders of Series A Voting Preferred Shares.
* * * * *
A-6
Exhibit B
FORM OF RIGHT CERTIFICATE
| Certificate No. R- | ____________Rights |
NOT EXERCISABLE AFTER NOVEMBER 5, 2020 OR EARLIER IF REDEEMED OR EXCHANGED. THE
RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $.001 PER RIGHT
ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. [THE RIGHTS REPRESENTED BY THIS
CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO IS OR WAS AN ACQUIRING
PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE
DEFINED IN THE RIGHTS AGREEMENT). THIS RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED
HEREBY MAY BECOME VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 11(a)(ii) OR
SECTION 11(d) OF THE RIGHTS AGREEMENT.*]
Right Certificate
LNB BANCORP, INC.
This certifies that _________________________, or registered assigns, is the registered owner
of the number of Rights set forth above, each of which entitles the owner thereof, subject to the
terms, provisions and conditions of the Rights Agreement, dated as of October 25, 2010, (the
“Rights Agreement”), between LNB Bancorp, Inc., an Ohio corporation (the “Company”), and Registrar
and Transfer Company, a New Jersey corporation (the “Rights Agent”), to purchase from the Company
at any time after the Distribution Date (as such term is defined in the Agreement) and prior to
5:00 P.M. (Eastern time) on November 5, 2020 at the principal office of the Rights Agent, or its
successors as Rights Agent, at its principal executive offices designated for such purpose, one
one-hundreth of one fully paid nonassessable Series A Voting Preferred Share, no par value per
share (“Preferred Share”) of the Company, at a purchase price of $60.00 per one one-hundreth of a
Preferred Share (the “Purchase Price”), upon representation and surrender of this Right Certificate
with the Form of Election to purchase and related Certificate duly executed. The number of Rights
evidenced by this Right Certificate (and the number of shares which may be purchased upon exercise
thereof) set forth above, and the Purchase Price set forth above, are the number and Purchase Price
as of the Record Date, based on the Preferred Shares as constituted at such date.
As provided in the Rights Agreement, the Purchase Price and the number of Preferred Shares
which may be purchased upon the exercise of the Rights evidenced by this Right Certificate are
subject to modification and adjustment upon the happening of certain events.
This Right Certificate is subject to all of the terms, provisions and conditions of the Rights
Agreement, which terms, provisions and conditions are hereby incorporated herein by
| * | The portion of the legend in brackets shall be inserted only if applicable. |
B-1
reference and made a part hereof and to which Rights Agreement reference is hereby made for a
full description of the rights, limitations of rights, obligations, duties and immunities hereunder
of the Rights Agent, the Company and the holders of the Right Certificates. Copies of the Rights
Agreement are on file at the above-mentioned office of the Rights Agent.
Pursuant to the Rights Agreement, from and after the time that any Person becomes an Acquiring
Person (as such terms are defined in the Rights Agreement), (i) any Rights that are or were
beneficially owned by any Acquiring Person (or any Affiliate or Associate of such Acquiring Person)
shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights
under any provision of the Rights Agreement, (ii) no Right Certificate shall be issued pursuant to
the Rights Agreement that represents Rights beneficially owned by an Acquiring Person or any
Affiliate or Associate thereof, (iii) no Right Certificate shall be issued at any time upon the
transfer of any Rights to an Acquiring Person or any Affiliate or Associate thereof, and (iv) any
Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person or any
Affiliate or Associate thereof shall be cancelled.
This Right Certificate, with or without other Right Certificates, upon surrender at the
principal office of the Rights Agent designated for such purpose, may be exchanged for another
Right Certificate or Right Certificates of like tenor and date evidencing Rights entitling the
holder to purchase a like aggregate number of Preferred Shares as the Rights evidenced by the Right
Certificate or Right Certificates surrendered shall have entitled such holder to purchase. If this
Right Certificate shall be exercised in part, the holder shall be entitled to receive upon
surrender hereof another Right Certificate or Right Certificates for the number of whole Rights not
exercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced by this Certificate
may be redeemed by the Company at its option at a redemption price of $.001 per Right.
Subject to the provisions of the Rights Agreement, the Directors may exchange the Rights
(other than any Rights which have become void), in whole or in part, at an exchange ratio of one
Common Share per Right (subject to adjustment).
No fractional Preferred Shares (other than fractions which are multiples of one one-hundreths
of a Preferred Share) will be issued upon the exercise of any Right or Rights evidenced hereby
(other than fractions which may, at the election of the Company, be evidenced by depositary
receipts), but in lieu thereof a cash payment will be made, as provided in the Rights Agreement.
No holder of this Right Certificate shall be entitled to vote or receive dividends or be
deemed for any purpose the holder of the Preferred Shares or of any other securities of the Company
which may at any time be issuable on the exercise hereof, nor shall anything contained in the
Rights Agreement or herein be construed to confer upon the holder hereof, as such, any of the
rights of a shareholder of the Company or any right to vote for the election of directors or upon
any matter submitted to shareholders at any meeting thereof, or to give or withhold consent to any
corporate action, or, to receive notice of meetings or other actions affecting shareholders (except
as provided in the Rights Agreement), or to receive dividends or subscription rights, or
B-2
otherwise, until the Right or Rights evidenced by this Right Certificate shall have been
exercised as provided in the Rights Agreement.
This Right Certificate shall not be valid or obligatory for any purpose until it shall have
been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company and its corporate seal.
Dated as of _________, ___.
ATTEST:
|
LNB BANCORP, INC. | |||||||
| By: | ||||||||
Secretary
|
Name: | |||||||
| Title: | ||||||||
| Countersigned: |
||||
| By: | ||||
| Authorized Signature | ||||
B-3
Form of Reverse Side of Right Certificate
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Right Certificate)
holder desires to transfer the Right Certificate)
FOR VALUE RECEIVED, __________________________ hereby sells, assigns and transfers unto
_____________________________
Dated: ___________________, ____
| Signature | ||||
Signature Guaranteed:
B-4
CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes that:
(1) the Rights evidenced by this Right Certificate [ ] are [ ] are not being sold, assigned,
transferred, split up, combined or exchanged by or on behalf of a Person who is or was an Acquiring
Person or an Affiliate or Associate of any such Person (as such terms are defined in the Rights
Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it [ ] did [ ] did not
acquire the Rights evidenced by this Right Certificate from any Person who is, was or became an
Acquiring Person or an Affiliate or Associate of an Acquiring Person.
Dated: ___________________, ____
| Signature | ||||
B-5
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise the Right Certificate)
exercise the Right Certificate)
To LNB Bancorp, Inc.:
The undersigned hereby irrevocably elects to exercise ____________ Rights represented by this
Right Certificate to purchase one one-hundreth of a Preferred Share or other securities issuable
upon the exercise of such Rights and requests that certificates for such securities be issued in
the name of:
Please insert social security
or other identifying number: _______________________
or other identifying number: _______________________
If such number of Rights shall not be all the Rights evidenced by this Right Certificate, a new
Right Certificate for the balance remaining of such Rights shall be registered in the name of and
delivered to:
Please insert social security
or other identifying number: _______________________
or other identifying number: _______________________
Dated: ___________________, ____
| Signature | ||||
Signature Guaranteed:
B-6
CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes that:
(1) the Rights evidenced by this Right Certificate [ ] are [ ] are not being exercised by or
on behalf of a Person who is or was an Acquiring Person or an Affiliate or Associate of any such
Person (as such terms are defined pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it [ ] did [ ] did not
acquire the Rights evidenced by this Right Certificate from any Person who is, was or became an
Acquiring Person or an Affiliate or Associate of an Acquiring Person.
Dated: ___________________, ____
| Signature | ||||
B-7
FORM OF CERTIFICATE OF EXCHANGE
The undersigned hereby certifies by checking the appropriate boxes that:
(1) the Rights evidenced by this Right Certificate [ ] are [ ] are not being exchanged by or
on behalf of a Person who is or was an Acquiring Person or an Affiliate or Associate of any such
Person (as such terms are defined pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it [ ] did [ ] did not
acquire the Rights evidenced by this Right Certificate from any Person who is, was or became an
Acquiring Person or an Affiliate or Associate of an Acquiring Person.
Dated: ___________________, ____
| Signature | ||||
NOTICE
Signatures on the foregoing Form of Assignment and Form of Election to Purchase and in the
related Certificates and the Form of Certificate of Exchange must correspond to the name as written
upon the face of this Right Certificate in every particular, without alteration or enlargement or
any change whatsoever.
Signatures must be guaranteed by an eligible guarantor institution (banks, stockbrokers,
savings and loan associations and credit unions with membership in an approved medallion signature
program) pursuant to Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended.
B-8
Exhibit C
SUMMARY OF RIGHTS TO PURCHASE
PREFERRED SHARES
PREFERRED SHARES
Effective October 25, 2010, the Directors of LNB Bancorp, Inc. (the “Company”) declared a
dividend distribution of one right (a “Right”) for each outstanding Common Share, $1.00 par value
per share (the “Common Shares”), of the Company. The distribution was payable on November 5, 2010
(the “Record Date”) to the shareholders of record as of the close of business on the Record Date.
Each Right entitles the registered holder to purchase from the Company one one-hundreth of a Series
A Voting Preferred Share at a price of $60.00 per one one-hundreth of a share, subject to
adjustment (the “Purchase Price”). The description and terms of the Rights are set forth in a
Rights Agreement dated as of October 25, 2010, (the “Rights Agreement”), between the Company and
Registrar and Transfer Company, as Rights Agent (the “Rights Agent”).
Until the earliest to occur of (i) the close of business on the tenth business day following a
public announcement that a person or group of affiliated or associated persons has acquired, or
obtained the right to acquire, beneficial ownership of 10% or more of the outstanding Common Shares
(an “Acquiring Person”), or (ii) the close of business on the tenth business day (or such later
date as may be specified by the Directors) following the commencement of a tender offer or exchange
offer by a person or group of affiliated or associated persons, the consummation of which would
result in beneficial ownership by such person or group of 10% or more of the outstanding Common
Shares (the earliest of such dates being hereinafter called the “Distribution Date”), the Rights
will be evidenced, with respect to any of the Common Share certificates outstanding as of the
Record Date, by such Common Share certificates.
The Rights Agreement provides that, until the Distribution Date, the Rights will be
transferred with and only with the Common Shares. Until the Distribution Date (or earlier
redemption, exchange or expiration of the Rights) or, in the case of Common Shares issued upon
conversion of the Company’s convertible securities, until the tenth day after the Distribution
Date, new Common Share certificates issued after the Record Date upon transfer or new issuance of
Common Shares will contain a notation incorporating the Rights Agreement by reference. Until the
Distribution Date (or earlier redemption, exchange or expiration of the Rights), the surrender for
transfer of any certificates for Common Shares in respect of which Rights have been issued 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 (the “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 November
5, 2020 (the “Final Expiration Date”), unless earlier redeemed or exchanged by the Company as
described below.
C-1
The Purchase Price payable, and the number of Series A Voting Preferred Shares or other
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 Voting Preferred Shares; (ii) upon the grant to holders of the
Series A Voting Preferred Shares of certain rights, options or warrants to subscribe for Series A
Voting Preferred Shares or convertible securities at less than the current market price of the
Series A Voting Preferred Shares; or (iii) upon the distribution to holders of Series A Voting
Preferred Shares of evidences of indebtedness, cash (excluding regular periodic cash dividends),
assets, stock (other than dividends payable in Series A Voting Preferred Shares) or of subscription
rights, options or warrants (other than those referred to above).
In the event (a “Flip-in Event”), that any person or group or affiliate or associated persons
becomes an Acquiring Person, proper provision shall be made so that each holder of a Right, other
than Rights that are or were owned beneficially by the Acquiring Person (which, from and after the
date of the earliest of any such event, will be void), will thereafter have the right to receive,
upon exercise thereof at the then current Purchase Price, that number of Common Shares having a
market value of two times the Purchase Price.
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 shares
(other than fractions which are multiples of one one-hundreths of a Series A Voting Preferred Share
and fractions which may, at the election of the Company, be evidenced by depositary receipts)
will be issued, and in lieu thereof, a payment in cash will be made based on the market price
of the Series A Voting Preferred Shares on the last trading day prior to the date of exercise.
In the event (a “Flip-over Event”) that, following the first date of public announcement that
a person has become an Acquiring Person, (i) the Company merges with or into any person and the
Company is not the surviving corporation, (ii) any person merges with or into the Company and the
Company is the surviving corporation, but its Common Shares are changed or exchanged, or (iii) 50%
or more of the Company’s assets or earning power, including without limitation securities creating
obligations of the Company, are sold, proper provision shall be made so that each holder of a
Right, other than Rights that are or were beneficially owned by the Acquiring Person after the date
upon which the Acquiring Person became such (which will thereafter be void), shall thereafter have
the right to receive, upon the exercise thereof at the then current Purchase Price of the Right,
that number of Common Shares (or, under certain circumstances, an economically equivalent security
or securities) of such other person which at the time of such transaction would have a market value
of two times the Purchase Price of the Right.
At any time after the Distribution Date, the Directors of the Company may exchange the Rights
(other than any Rights which have become void), in whole or in part, at an exchange ratio of one
Common Share (or a lesser ratio as determined by the Directors if the Company does not have
sufficient authorized and unreserved Common Shares) per Right (subject to adjustment).
C-2
The Company may redeem the Rights in whole, but not in part, at a price of $.001 per Right
(the “Redemption Price”), at any time prior to the close of business on the Distribution Date.
Immediately upon the effective date of action of the Directors electing to redeem 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 Company will give notice of such redemption to the holders of
the then outstanding Rights by mailing such notice to all such holders at their last addresses as
they appear on the registry books of the Rights Agent.
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 Rights Agreement may be amended by the Company without the approval of any holders of
Rights, including amendments which add other events requiring adjustment to the Purchase Price
payable and the number of Common Shares and/or Series A Voting Preferred Shares or other securities
issuable upon the exercise of the Rights or which modify procedures relating to the redemption of
the Rights, provided that no amendment may be made which (i) changes the stated Redemption Price,
(ii) reduces the number of Series A Voting Preferred Shares for which a Right is then exercisable,
or (iii) modifies a time period relating to when the Rights may be redeemed at such time as the
Rights are not then redeemable.
A copy of the Rights Agreement has been filed with the Securities and Exchange Commission as
an Exhibit to a Form 8-A dated October 25, 2010. A copy of the Rights Agreement is available free
of charge from the Company. This summary description of the Rights does not purport to be complete
and is qualified in its entirety by reference to the Rights Agreement, which is hereby incorporated
herein by reference.
C-3