Exhibit
4.4


 


EXECUTION VERSION


 


West Coast Bancorp


 


and


 


Wells Fargo Bank, National Association


 


Tax Benefit Preservation Plan


 


Dated as of October 23, 2009


 

















 


TAX BENEFIT PRESERVATION PLAN


 


Tax
Benefit Preservation Plan, dated as October 23, 2009 (“Plan”) between West
Coast Bancorp, an Oregon corporation (the “Company”) and Wells Fargo
Bank, National Association, as rights agent (the “Rights Agent”).


 


W I T N E S S E T H


 


The
Board of Directors of the Company has authorized and declared a dividend of one
preferred share purchase right (a “Right”) for each Common Share (as
hereinafter defined) of the Company outstanding on November 2, 2009 (the “Record
Date”) and 50 Rights (subject to adjustment as provided herein) for each
share of Series A Preferred Stock and 50 Rights (subject to adjustment as
provided herein) for each share of Series B Preferred Stock outstanding on the
Record Date, each Right representing the right to purchase one one-hundredth of
a share of Series C Preferred Stock (as hereinafter defined), upon the terms
and subject to the conditions herein set forth, and has further authorized and
directed the issuance of one Right with respect to each Common Share, 50 Rights
with respect to each share of Series A Preferred Stock, and 50 Rights with respect
to each share of Series B Preferred Stock that shall become outstanding between
the Record Date and the earliest of the Distribution Date, the Redemption Date,
the Early Expiration Date and the Final Expiration Date (as such terms are
hereinafter defined).


 


Accordingly,
in consideration of the premises and the mutual agreements herein set forth,
the parties hereby agree as follows:


 


Section
1.      Definitions. For purposes of this Plan,
the following terms have the meanings indicated:


 


(a)           “Acquiring Person” shall mean
any Person (other than any Exempt Person) who or which, together with all
Affiliates and Associates of such Person, shall be the Beneficial Owner of 4.9%
or more of the Common Stock of the Company then outstanding, but shall not
include the Company, any Subsidiary of the Company, any employee benefit plan
of the Company or any Subsidiary of the Company, any entity holding Common
Stock for or pursuant to the terms of any such plan, or any Person becoming an
Acquiring Person as a result of (A) the repurchase of Common Stock, Series A
Preferred Stock or Series B Preferred Stock by the Company or (B) a stock
dividend, stock split, reverse stock split or similar transaction effected by
the Company, in each case unless and until such Person, after becoming aware
that such Person has become an Acquiring Person, becomes a Beneficial Owner of
any additional Common Stock; provided, however, that, (i) any
Person who or which would otherwise be an Acquiring Person as of the date of
this Plan (such person, an “Existing Holder”) will not be deemed to be
an Acquiring Person for any purpose of this Plan prior to or after the date of
this Plan unless and until such time as (A) such Person or any Affiliate or
Associate of such Person thereafter becomes, individually or in the aggregate,
the Beneficial Owner of additional Common Stock representing two-tenths of a percent (0.2%) or more of the Common Stock
then outstanding, not including Common Shares obtained (1) pursuant to any
agreement or regular-way purchase order for Common Stock that is in effect on
or prior to the date of this Plan and consummated in accordance with its terms
after the date of this Plan, or (2) as a result of a stock


 


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dividend,
rights dividend, stock split or similar transaction effected by the Company in
which all holders of Common Stock are treated equally, (B) any other Person who
is the Beneficial Owner of Common Stock becomes an Affiliate or Associate of
such Person after the date of this Plan, or (C) such Person or any
Affiliate  or Associate of such Person
exercises rights, options or warrants to acquire any Common Stock, Series A
Preferred Stock or Series B Preferred Stock; provided, however,
that the foregoing exclusion in this clause (i) shall cease to apply with
respect to any Person at such time as such Person, together with all Affiliates
and Associates of such Person, Beneficially Owns less than 4.9% of the
then-outstanding Common Stock, and (ii) a Person will not be deemed to have
become an Acquiring Person solely as a result of a reduction in the number of shares
of Common Stock outstanding unless and until such time as (A) such Person or
any Affiliate or Associate of such Person thereafter becomes the Beneficial
Owner of any additional Common Stock, other than as a result of a stock
dividend, stock split or similar transaction effected by the Company in which
all holders of Common Stock are treated equally, or (B) any other Person who is
the Beneficial Owner of Common Stock becomes an Affiliate or Associate of such
Person after the date of this Plan. Notwithstanding the foregoing, if (1) the
Board of Directors of the Company determines 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 (2) such Person divests
as promptly as practicable or agrees in writing with the Company to divest a
sufficient number of shares of Common Stock so that such Person would no longer
be an “Acquiring Person,” as defined pursuant to the foregoing provisions of
this paragraph (a), then, if the Board of Directors of the Company so chooses,
such Person shall not be deemed to be an “Acquiring Person” for any purposes of
this Plan; provided, however, that the requirement in this clause
(2) shall apply only if the actions specified therein are required by the Board
of Directors of the Company.


 


(b)           “Affiliate” shall have the
meaning ascribed to such term in Rule 12b-2 of the General Rules and
Regulations under the Exchange Act, as in effect on the date of this Plan and,
to the extent not included within the foregoing, will also include, with
respect to any Person, any other Person (other than an Exempt Person) whose
Common Stock would be deemed owned constructively or indirectly by, or
otherwise aggregated with, such first Person pursuant to the provisions of Section
382; provided, however, that a Person will not be deemed to be
the Affiliate or Associate of another Person solely because either or both
Persons are or were Directors of the Company.


 


(c)           “Associate” shall have the
meaning ascribed to such term in Rule 12b-2 of the General Rules and
Regulations under the Exchange Act as in effect on the date of this Plan.


 


(d)           A Person shall be deemed the “Beneficial
Owner” of and shall be deemed to “beneficially own” any securities:


 


(i)      which such Person or any of such Person’s
Affiliates or Associates beneficially owns, directly or indirectly;


 


(ii)      which such Person or any of such Person’s
Affiliates or Associates has (A) the right to acquire (whether such right is
exercisable immediately or only after the passage of time or after the
satisfaction of conditions) pursuant to any agreement, arrangement or


 


3

















 


understanding
(other than customary agreements with and between underwriters and selling
group members with respect to a bona fide public offering of
securities), or upon the exercise of conversion rights, exchange rights, rights
(other than these Rights), warrants or options, or otherwise (whether such
rights are exercisable immediately or only after the passage of time or after
the satisfaction of conditions); provided, however, that a Person
shall not be deemed the Beneficial Owner of, or to beneficially own, securities
tendered pursuant to 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 (B) the right to vote
pursuant to any agreement, arrangement or understanding; provided, however,
that a Person shall not be deemed the Beneficial Owner of, or to beneficially
own, any security if the agreement, arrangement or understanding to vote such
security (1) arises solely from a revocable proxy or consent 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 promulgated under
the Exchange Act and (2) is not also then reportable on Schedule 13D under the
Exchange Act (or any comparable or successor report); for the avoidance of
doubt, (1) if a Person or any of such Person’s Affiliates or Associates holds Series
A Preferred Stock or a warrant, right or option to acquire Series A Preferred
Stock, such Person shall be deemed to “beneficially own” the Common Stock into
which such Series A Preferred Stock is convertible (notwithstanding any
limitations or conditions on the conversion of the Series A Preferred Stock)
and (2) if a Person or any of such Person’s Affiliates or Associates holds Series
B Preferred Stock or a warrant, right or option to acquire Series B Preferred
Stock, such Person shall be deemed to “beneficially own” the Common Stock into
which such Series B Preferred Stock is convertible (notwithstanding any
limitations or conditions on the conversion of the Series B Preferred Stock);
or


 


(iii)      which are beneficially owned, directly or
indirectly, by any other Person with which such Person or any of such Person’s
Affiliates or Associates has any agreement, arrangement or understanding (other
than customary agreements with and between underwriters and selling group
members with respect to a bona fide public offering of securities) for the
purpose of acquiring, holding, voting (except to the extent contemplated by the
proviso to Section 1(d)(ii)(B) hereof) or disposing of any securities of the
Company.


 


Notwithstanding
anything in this Plan to the contrary, to the extent not within the foregoing
provisions of this paragraph (d), a Person shall be deemed the “Beneficial
Owner” of, and shall be deemed to “beneficially own” or have “beneficial
ownership” of, any securities which such Person would be deemed to own (whether
constructively, indirectly or otherwise) pursuant to Section 382.


 


Notwithstanding
anything in this definition of Beneficial Ownership to the contrary, the phrase
“then outstanding,” (i) when used with reference to a Person’s Beneficial
Ownership of securities (other than Series A Preferred Stock and Series B
Preferred Stock) of the Company, shall mean the number of such securities then
issued and outstanding together with the number of such securities not then
actually issued and outstanding which such Person would be deemed to own
beneficially hereunder and (ii) shall include the number of Common Shares into
which the Series A Preferred Stock then issued and outstanding is convertible
(notwithstanding any


 


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limitations
or conditions on the conversion of the Series A Preferred Stock) and shall
include the number of Common Shares into which the Series B Preferred Stock
then issued and outstanding is convertible (notwithstanding any limitations or
conditions on the conversion of the Series B Preferred Stock).


 


(e)           “Business Day” shall mean any
day other than a Saturday, a Sunday, or a day on which banking institutions in New
York are authorized or obligated by law or executive order to close.


 


(f)            “Close of Business” on any
given date shall mean 5:00 P.M., New York City time, on such date; provided,
however, that, if such date is not a Business Day, it shall mean 5:00 P.M.,
New York City time, on the next succeeding Business Day.


 


(g)           “Common Stock” or “Common
Shares” when used with reference to the Company shall mean the shares of
common stock, no par value, of the Company. “Common Stock” or “Common Shares”
when used with reference to any Person other than the Company shall mean the
capital stock (or equity interest) with the greatest voting power of such other
Person or, if such other Person is a Subsidiary of another Person, the Person
or Persons which ultimately control such first-mentioned Person.


 


(h)           “Distribution Date” shall have
the meaning set forth in Section 3(a) hereof.


 


(i)            “Early Expiration Date” shall
have the meaning set forth in Section 7(a) hereof.


 


(j)            “Exchange Act” shall mean the
Securities Exchange Act of 1934, as amended.


 


(k)           “Exchange Ratio” shall have
the meaning set forth in Section 24(a) hereof.


 


(l)            “Exempt Person” shall mean a
Person whose Beneficial Ownership (together with all Affiliates and Associates
of such Person) of 4.9% or more of the then-outstanding Common Stock, as
determined after the date hereof by the Company’s Board of Directors in its
sole discretion, (i) will not jeopardize or endanger the availability to the
Company of any income tax benefit or (ii) is otherwise in the best interests of
the Company; provided, however, that such a Person will cease to
be an Exempt Person if the Board makes a contrary determination with respect to
the effect of such Person’s Beneficial Ownership (together with all Affiliates
and Associates of such Person) regardless of the reason therefor.


 


(m)          “Final Expiration Date” shall
have the meaning set forth in Section 7(a) hereof.


 


(n)           “NASDAQ” shall mean the
National Association of Securities Dealers, Inc. Automated Quotation System.


 


(o)           “Person” shall mean any
individual, firm, corporation, partnership, limited


 


5

















 


liability
company, limited liability partnership, trust, estate or other entity, or a
group of Persons making a “coordinated acquisition” of shares or otherwise
treated as an entity within the meaning of Section 1.382-3(a)(1) of the
Treasury Regulations, and shall include any successor (by merger or otherwise)
of such individual or entity, but shall not include a Public Group (as such
term is defined in Section 1.382-2T(f)(13) of the Treasury Regulations).


 


(p)           “Purchase Price” shall have
the meaning set forth in Section 7(b) hereof.


 


(q)           “Record Date” shall have the
meaning set forth in the second paragraph hereof.


 


(r)            “Redemption Date” shall have
the meaning set forth in Section 7(a) hereof.


 


(s)           “Redemption Price” shall have
the meaning set forth in Section 23(a) hereof.


 


(t)            “Right” shall have the
meaning set forth in the second paragraph hereof.


 


(u)           “Right Certificate” shall have
the meaning set forth in Section 3(a) hereof.


 


(v)           “Section 382” shall mean Section
382 of the Internal Revenue Code of 1986, as amended, or any successor
provision or replacement provision.


 


(w)          “Series A Preferred Stock”
shall mean shares of Mandatorily Convertible Cumulative Participating Preferred
Stock, Series A, no par value, of the Company.


 


(x)            “Series B Preferred Stock”
shall mean shares of Mandatorily Convertible Cumulative Participating Preferred
Stock, Series B, no par value, of the Company.


 


(y)           “Series C Preferred Stock”
shall mean shares of Series C Junior Participating Preferred Stock, no par
value, of the Company having the rights and preferences set forth in the Form of
Articles of Amendment to Designate the Terms of Series C Junior Participating
Preferred Stock attached to this Plan as Exhibit A.


 


(z)            “Shares Acquisition Date”
shall mean the first date of public announcement by the Company or an Acquiring
Person, prior to the earliest of the Redemption Date, the Early Expiration Date
and the Final Expiration Date, that an Acquiring Person has become such.


 


(aa)         “Stockholder Approval” shall
mean the approval of this Plan where the votes cast in favor of the Plan exceed
the votes cast against it at the meeting of stockholders of the Company duly
held in accordance with the Company’s Restated Articles of Incorporation and
Amended and Restated Bylaws and applicable law.


 


(bb)         “Subsidiary” of any Person shall
mean any corporation or other entity of


 


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which
a majority of the voting power of the voting equity securities or equity
interest is owned, directly or indirectly, by such Person.


 


(cc)         “Summary of Rights” shall have
the meaning set forth in Section 3(b) hereof.


 


(dd)         “Trading Day” shall have the
meaning set forth in Section 11(d) hereof.


 


(ee)         “Treasury Regulations” shall
mean final, temporary and proposed income tax regulations promulgated under the
Internal Revenue Code of 1986, as amended, including any amendments thereto.


 


Section
2.     Appointment of Rights Agent. The
Company hereby appoints the Rights Agent to act as agent for the Company in
accordance with the terms and conditions hereof, and the Rights Agent hereby
accepts such appointment. The Company may from time to time appoint such
co-Rights Agents as it may deem necessary or desirable.


 


Section
3.     Issue of Right Certificates.
(a) Until the Close of Business on the tenth day after the Shares Acquisition
Date (including any such Shares Acquisition Date which is after the date of
this Plan and prior to the issuance of the Rights) (the “Distribution Date”),
(i) the Rights will be evidenced (subject to the provisions of Section 3(b) hereof)
by the certificates for Common Stock of the Company registered in the names of
the holders thereof and by the certificates for the Series A Preferred Stock and
the Series B Preferred Stock of the Company registered in the names of the
holders thereof (such certificates for the Common Stock, the Series A Preferred
Stock and the Series B Preferred Stock shall also be deemed to be Right
Certificates) and not by separate Right Certificates, and (ii) the right to
receive Right Certificates will be transferable only in connection with the
transfer of the underlying shares of Common Stock, Series A Preferred Stock or Series
B Preferred Stock.  As soon as
practicable after the Distribution Date, the Company will prepare and execute,
the Rights Agent will countersign, and the Company will send or cause to be
sent (and the Rights Agent will, if requested, send) by first-class, insured,
postage-prepaid mail, (x) to each record holder of Common Stock of the Company
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 (a “Right Certificate”),
evidencing one Right for each Common Share so held (other than with respect to
Rights that have become void pursuant to Section 11(a)(ii) hereof or that have
been exchanged pursuant to Section 24 hereof), (y) to each record holder of Series
A Preferred Stock of the Company 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 evidencing the number of Rights held with respect
to each share of Series A Preferred Stock (other than with respect to Rights
that have become void pursuant to Section 11(a)(ii) hereof or that have been
exchanged pursuant to Section 24 hereof) and (z) to each record holder of Series
B Preferred Stock of the Company 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 evidencing the number of Rights held with respect
to each share of Series B Preferred Stock (other than with respect to Rights
that have become void pursuant to Section 11(a)(ii) hereof or that have been
exchanged pursuant to Section 24 hereof). 
Upon conversion or exchange of any share of Series A Preferred Stock or


 


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Series
B Preferred Stock into shares of Common Stock, the Rights associated with such
share of Series A Preferred Stock or Series B Preferred Stock will
automatically be extinguished, and a Right will be issued in respect of each
such share of Common Stock.  As of the
Distribution Date, the Rights will be evidenced solely by such Right
Certificates.


 


(b)     On the Record Date, or as soon as
practicable thereafter, the Company will, at its option, either send (by
first-class, postage-prepaid mail at the address shown on the records of the
Company) or make otherwise available to each record holder of Common Stock, to
each record holder of Series A Preferred Stock, and to each record holder of Series
B Preferred Stock as of the Close of Business on the Record Date, a copy of a
Summary of Rights to Purchase Series C Preferred Stock, in substantially the
form of Exhibit C hereto (the “Summary of Rights”). With respect to
certificates for Common Stock of the Company outstanding as of the Record Date,
certificates for Series A Preferred Stock outstanding as of the Record Date,
and certificates for Series B Preferred Stock outstanding as of the Record Date,
until the Distribution Date, the Rights will be evidenced by such certificates
registered in the names of the holders thereof together with a copy of the
Summary of Rights attached thereto. Until the Distribution Date (or the earliest
of the Redemption Date, the Early Expiration Date or the Final Expiration
Date), the surrender for transfer of any certificate for Common Stock, Series A
Preferred Stock or Series B Preferred Stock of the Company outstanding on the
Record Date, with or without a copy of the Summary of Rights attached thereto,
shall also constitute the transfer of the Rights associated with the Common
Stock, Series A Preferred Stock or Series B Preferred Stock of the Company
represented thereby.


 


(c)   Certificates for such Common Stock, Series A
Preferred Stock or Series B Preferred Stock which become outstanding after the
Record Date but prior to the earliest of the Distribution Date, the Redemption
Date, the Early Expiration Date or the Final Expiration Date shall have
impressed on, printed on, written on or otherwise affixed to them a legend in
substantially the following form:


 


This
certificate also evidences and entitles the holder hereof to certain rights as
set forth in the Plan between West Coast Bancorp and Wells Fargo Bank, National
Association, dated as of October 23, 2009, as it may be amended from time to
time (the “Plan”), the terms of which are hereby incorporated herein by
reference and a copy of which is on file at the principal executive offices of West
Coast Bancorp. Under certain circumstances, as set forth in the Plan, such
Rights (as defined in the Plan) will be evidenced by separate certificates and
will no longer be evidenced by this certificate. West Coast Bancorp will mail
to the holder of this certificate a copy of the Plan without charge after
receipt of a written request therefor. As set forth in the Plan, Rights
beneficially owned by any Person (as defined in the Plan) who becomes an
Acquiring Person or an Affiliate or an Associate of any Acquiring Person (each as
defined in the Plan) become null and void.


 


With
respect to such certificates containing the foregoing legend, until the
Distribution Date, the Rights associated with the Common Stock, Series A
Preferred Stock or Series B Preferred Stock of the Company represented by such
certificates shall be evidenced by such certificates alone, and the surrender
for transfer of any such certificate (prior to the earliest of the Distribution
Date, the Redemption Date, the Early Expiration Date or the Final Expiration
Date) shall also 


 


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constitute
the transfer of the Rights associated with the Common Stock, Series A Preferred
Stock or Series B Preferred Stock of the Company represented thereby. In the event
that the Company purchases or otherwise acquires any Common Stock, Series A
Preferred Stock or Series B Preferred Stock of the Company after the Record
Date but prior to the Distribution Date, any Rights associated with such Common
Stock, Series A Preferred Stock or Series B Preferred stock of the Company
shall be deemed cancelled and retired so that the Company shall not be entitled
to exercise any Rights associated with the Common Stock, Series A Preferred
Stock or Series B Preferred Stock of the Company which are no longer
outstanding.


 


Section
4.      Form of Right Certificates. (a) The
Right Certificates (and the forms of election to purchase Series C Preferred
Stock and of assignment to be printed on the reverse thereof) shall be
substantially the same as Exhibit B hereto, and may have such 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 Plan, or as may be required to comply with any
applicable law or with any applicable rule or regulation made pursuant thereto
or with any applicable rule or regulation of any stock exchange or the
Financial Industry Regulatory Authority, or to conform to usage. Subject to the
provisions of Section 22 hereof, the Right Certificates shall entitle the
holders thereof to purchase such number of one one-hundredths of a share of Series
C Preferred Stock at the price per one one-hundredth of a share of Series C
Preferred Stock set forth herein in Section 7(b), but the number of such one
one-hundredths of a share of Series C Preferred Stock and the Purchase Price
shall be subject to adjustment as provided herein.


 


Section
5.      Countersignature and Registration. The
Right Certificates shall be executed on behalf of the Company by its Chairman
of the Board, its President and Chief Executive Officer, its Chief Financial
Officer, its General Counsel, any of its Vice Presidents or its Treasurer (any
of the foregoing, an “Authorized Officer”), either manually or by
facsimile signature, shall have affixed thereto the Company’s seal or a
facsimile thereof, and 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 or by facsimile countersigned by the Rights
Agent and shall not be valid for any purpose unless 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 individual 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 individual 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 Plan any such individual was not
such an officer.


 


Following
the Distribution Date, the Rights Agent will keep or cause to be kept, at its
principal office, 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.


 


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Section
6.      Transfer, Split Up, Combination and
Exchange of Right Certificates; Mutilated, Destroyed, Lost or Stolen Right
Certificates. Subject to the provisions of Section 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 earliest of the Redemption Date, the Early Expiration
Date or the Final Expiration Date, any Right Certificate or Right Certificates
(other than Right Certificates representing Rights that have become void
pursuant to Section 11(a)(ii) hereof or that have been exchanged pursuant to Section
24 hereof) 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-hundredths of a share of Series C Preferred
Stock as the Right Certificate or Right Certificates surrendered then entitled
such holder to purchase. Any registered holder desiring to transfer, split up,
combine or exchange any Right Certificate or Right Certificates 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. Neither the Rights Agent
nor the Company shall be obligated to take any action whatsoever with respect
to the transfer of any such surrendered Right Certificate until the registered
holder shall have completed and signed the certificate contained in the form of
assignment on the reverse side of such Right Certificate and shall have
provided such additional evidence of the identity of the Beneficial Owner (or
former Beneficial Owner) or Affiliates or Associates thereof as the Company
shall reasonably request. Thereupon or as promptly as practicable thereafter,
the Rights Agent shall countersign and deliver to the Person entitled thereto a
Right Certificate or Right 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.


 


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, at the Company’s request, 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 make and deliver a new Right Certificate of like
tenor to the Rights Agent for delivery 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, 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 of the Rights Agent, together with payment
of the Purchase Price for each one one-hundredth of a share of Series C
Preferred Stock as to which the Rights are exercised, at or prior to the
earliest of (i) the Close of Business on October 23, 2012 (the “Final
Expiration Date”), (ii) the time at which the Rights are redeemed as
provided in Section 23 hereof (the “Redemption Date”), (iii) the time at
which such Rights are exchanged as provided in Section 24 hereof, (iv) the
repeal of Section 382 or any successor statute, or any other change, if the
Board, in its sole discretion, determines that this Plan is no


 


10
















 


longer
necessary for the preservation of tax benefits, (v) October 25, 2010 if
Stockholder Approval has not been obtained prior to such date or (vi) a
determination by the Board, prior to the time any Person becomes an Acquiring
Person, that the Plan and the Rights are no longer necessary for the preservation
or existence of income tax benefits or are no longer in the best interests of
the Company and its stockholders (the earliest of the dates set forth in
clauses (iv), (v), and (vi), the “Early Expiration Date”).


 


(b)      The
Purchase Price for each one one-hundredth of a share of Series C Preferred
Stock purchasable pursuant to the exercise of a Right shall initially be $30.00
(the “Purchase Price”),  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 required to be
paid by the holder of such Right Certificate in accordance with Section 9
hereof by certified check, cashier’s check or money order payable to the order
of the Company, the Rights Agent shall thereupon promptly (i) (A) requisition
from any transfer agent of the Series C Preferred Stock certificates for the
number of Series C Preferred Stock to be purchased and the Company hereby
irrevocably authorizes any such transfer agent to comply with all such
requests, or (B) requisition from the depositary agent depositary receipts
representing such number of one one-hundredths of a share of Series C Preferred
Stock as are to be purchased (in which case certificates for the Series C
Preferred Stock represented by such receipts shall be deposited by the transfer
agent of the Series C Preferred Stock with such depositary agent) and the
Company hereby directs such depositary agent to comply with such request; (ii) when
appropriate, requisition from the Company the amount of cash to be paid in lieu
of issuance of fractional shares in accordance with Section 14 hereof; (iii) after
receipt of such certificates or depositary receipts, cause the same to be
delivered to or upon the order of the registered holder of such Right
Certificate, registered in 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.  The payment of the Purchase Price shall be
made in cash or by certified bank check or bank draft payable to the order of
the Company. The Company reserves the right to require prior to the occurrence
of an event described in Section 11(a)(ii) that, upon any exercise of Rights, a
number of Rights be exercised so that only whole shares of Series C Preferred
Stock would be issued.


 


(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 registered holder of such Right Certificate or to such holder’s 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 will 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 or
exercise of a Right Certificate as set forth in this Section 7 unless the
registered holder of such


 


11

















 


Right
Certificate has (i) completed and signed the certificate following the form of
assignment or the 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 may reasonably request.


 


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 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 Plan. 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. Subject to applicable law and regulation, the Rights Agent
shall maintain in a retrievable database electronic records of all cancelled or
destroyed stock certificates which have been canceled or destroyed by the
Rights Agent. The Rights Agent shall maintain such electronic records or
physical records for the time period required by applicable law and regulation.
Upon written request of the Company (and at the expense of the Company), the
Rights Agent shall provide to the Company or its designee copies of such
electronic records or physical records relating to rights certificates cancelled
or destroyed by the Rights Agent.


 


Section
9.      Availability
of Series C Preferred Stock. (a) The Company covenants and agrees that it
will cause to be reserved and kept available out of its authorized and unissued
Series C Preferred Stock or any Series C Preferred Stock held in its treasury
the number of shares of Series C Preferred Stock that will be sufficient to
permit the exercise in full of all outstanding Rights in accordance with Section
7 hereof. The Company covenants and agrees that it will take all such action as
may be necessary to ensure that all Series C Preferred Stock delivered upon
exercise of Rights shall, at the time of delivery of the certificates for such Series
C Preferred Stock (subject to payment of the Purchase Price), be duly and
validly authorized and issued and fully paid and nonassessable shares.


 


(b)              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 Series C Preferred
Stock 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 or depositary receipts for the Series C Preferred
Stock in a name other than that of, the registered holder of the Right
Certificate evidencing Rights surrendered for exercise or to issue or to
deliver any certificates or depositary receipts for Series C Preferred Stock
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 reasonable
satisfaction that no such tax is due.


 


(c)           If the Company determines that
registration under the Securities Act is required, then the Company shall use
commercially reasonable efforts (i) to file, as soon as practicable


 


12

















 


after
the Distribution Date, on an appropriate form, a registration statement under
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 earliest of the
Redemption Date, the Early Expiration Date or the Final 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 not to exceed 90 calendar days after the date the
Company determines that registration is required, the exercisability of the
Rights in order to prepare and file such registration statement and to permit
it to become effective or to qualify the rights, the exercise thereof or the
issuance of shares of Series C Preferred Stock, Common Stock, or other
securities upon the exercise thereof under state securities or “blue sky”
laws.  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.  The Company shall notify the Rights Agent in
writing whenever it makes a public announcement pursuant to this Section 9 and
give the Rights Agent a copy of such announcement.  In addition, if the Company determines that a
registration statement or other document 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, for a period of time
not to exceed 90 calendar days after the date the Company makes such
determination, in each relevant jurisdiction, until such time as a registration
statement has been declared effective or any such other document filed and, if
required, approved, 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 has not been effected or the exercise of the Rights is not
permitted under applicable law.


 


Section
10.      Series C Preferred Stock Record Date.
Each Person in whose name any certificate for Series C Preferred Stock is
issued upon the exercise of Rights shall for all purposes be deemed to have
become the holder of record of the shares of Series C Preferred Stock
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 Series C Preferred Stock 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 Series C Preferred Stock 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 holder of Series C Preferred Stock 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


 


13

















 


herein.


 


Section
11.      Adjustment
of Purchase Price, Number of Shares or Number of Rights. The Purchase
Price, the number of shares of Series C Preferred Stock 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 the Company shall at any time
after the date of this Plan (A) declare a dividend on the Series C Preferred
Stock payable in Series C Preferred Stock, (B) subdivide the outstanding shares
of Series C Preferred Stock, (C) combine the outstanding shares of Series C
Preferred Stock into a smaller number of shares of Series C Preferred Stock or (D)
issue any shares of its capital stock in a reclassification of the Series C
Preferred Stock (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), 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 kind 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 Series C Preferred Stock 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; provided, however, that in no event shall the
consideration to be paid upon the exercise of one Right be less than the
aggregate par value of the shares of capital stock of the Company issuable upon
exercise of one Right.


 


(ii)      Subject to Section 23 and Section 24 hereof,
in the event any Person becomes an Acquiring Person, each holder of a Right
(other than an Acquiring Person or an Affiliate or Associate of an Acquiring
Person) shall thereafter have a right to receive, upon exercise thereof at a
price equal to the then current Purchase Price multiplied by the number of one
one-hundredths of a share of Series C Preferred Stock for which a Right is then
exercisable, in accordance with the terms of this Plan and in lieu of Series C
Preferred Stock, such number of Common Stock as shall equal the result obtained
by (A) multiplying the then current Purchase Price by the number of one
one-hundredths of a share of Series C Preferred Stock for which a Right is then
exercisable and dividing that product by (B) 50% of the then current per share
market price of the Common Stock of the Company (determined pursuant to Section
11(d) hereof) on the date of the occurrence of such event; provided that,
notwithstanding the foregoing, no Right that immediately prior to the
Distribution Date was evidenced by a certificate that also evidenced Series B
Preferred Stock may be exercised for Common Stock pursuant to this Section 11(a)(ii)
until such Right is transferred to a third party in a Widely Dispersed Offering
(as such term is defined in the Articles of Amendment of the Series B Preferred
Stock). In the event that any Person shall become an Acquiring Person and does
not become an Exempt Person prior to the Distribution Date and the Rights shall
then be outstanding, the Company shall not take any action which would
eliminate or diminish the benefits intended to be afforded by the Rights.


 


Notwithstanding
anything in this Agreement to the contrary, however, from and after the first
occurrence of such event, any Rights that are beneficially owned by (A) any
Acquiring


 


14

















 


Person
(or any Affiliate or Associate of any Acquiring Person), (B) a transferee of
any Acquiring Person (or any such Affiliate or Associate) who becomes a
transferee after the occurrence of such Person becoming an Acquiring Person or (C)
a transferee of any Acquiring Person (or any such Affiliate or Associate) who
became a transferee prior to or concurrently with such Person becoming an
Acquiring Person pursuant to either (1) a transfer from the Acquiring Person
(or any such Affiliate or Associate) to holders of its equity securities or to
any Person with whom the Acquiring Person (or any such Affiliate or Associate)
has any continuing agreement, arrangement or understanding, written or
otherwise, regarding the transferred Rights or (2) a transfer that the Board
has determined is part of a plan, arrangement or understanding, written or
otherwise, which has the purpose or effect of avoiding the provisions of this
paragraph, shall be null and void without any further action and any holder of
such Rights shall thereafter have no rights whatsoever with respect to such
Rights, whether under any provision of this Agreement or otherwise.  The Company will use commercially reasonable
efforts to ensure that the provisions of this Section 11(a)(ii) are complied
with, but shall have no liability to any holder of Rights Certificates or other
Person as a result of its failure to make any determinations with respect to an
Acquiring Person or its Affiliates, Associates or transferees hereunder.  From and after the occurrence of any Person
becoming an Acquiring Person, no Right Certificates shall be issued pursuant to
Section 3 or Section 6 hereof that represents Rights that are or have become
void pursuant to the provisions of this paragraph, and any Right Certificates
delivered to the Rights Agent that represents Rights that are or have become
void pursuant to the provisions of this paragraph shall be cancelled.


 


(iii)      In
the event that there shall not be sufficient Common Stock issued but not
outstanding or authorized but unissued to permit the exercise in full of the
Rights in accordance with subparagraph (ii) above, the Company may suspend
temporarily such exercise and shall take all such action as may be necessary to
authorize additional Common Stock for issuance upon exercise of the Rights. In
the event the Company shall, after good faith effort, be unable to take all
such action as may be necessary to authorize such additional Common Stock, the
Company shall substitute, for each Common Share that would otherwise be
issuable upon exercise of a Right, a number of shares of Series C Preferred
Stock or fraction thereof such that the current per share market price of one share
of Series C Preferred Stock multiplied by such number or fraction is equal to
the current per share market price of one Common Share as of the date of
issuance of such shares of Series C Preferred Stock or fraction thereof.


 


(b)      In case the Company shall fix a record date
for the issuance of rights, options or warrants to all holders of Series C
Preferred Stock entitling them (for a period expiring within 45 calendar days
after such record date) to subscribe for or purchase Series C Preferred Stock
(or shares having the same rights, privileges and preferences as the Series C
Preferred Stock (“equivalent preferred shares”)) or securities
convertible into Series C Preferred Stock or equivalent preferred shares at a
price per share of Series C Preferred Stock or equivalent preferred share (or
having a conversion price per share, if a security convertible into Series C
Preferred Stock or equivalent preferred shares) less than the then current per
share market price of the Series C Preferred Stock (as defined in Section 11(d))
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 shares of Series C Preferred Stock outstanding on such record date
plus the number of


 


15

















 


shares
of Series C Preferred Stock which the aggregate offering price of the total
number of shares of Series C Preferred Stock 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 shares of Series C
Preferred Stock outstanding on such record date plus the number of additional shares
of Series C Preferred Stock 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); provided, however, that in no
event shall the consideration to be paid upon the exercise of one Right be less
than the aggregate par value of the shares of capital stock of the Company
issuable upon exercise of one Right. 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
Board of Directors of the Company, whose determination shall be described in a
statement filed with the Rights Agent and shall be binding on the Rights Agent
and holders of the Rights. Shares of Series C Preferred Stock 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 case the Company shall fix a record date
for the making of a distribution to all holders of the Series C Preferred Stock
(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 or assets (other than a regular quarterly cash
dividend or a dividend payable in Series C Preferred Stock) or subscription
rights 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 then-current per share
market price of the Series C Preferred Stock on such record date, less the fair
market value (as determined in good faith by the Board of Directors of the
Company, whose determination shall be described in a statement filed with the
Rights Agent and shall be binding on the Rights Agent and holders of the
Rights) of the portion of the assets or evidences of indebtedness so to be
distributed or of such subscription rights or warrants applicable to one share
of Series C Preferred Stock and the denominator of which shall be such
then-current per share market price of the Series C Preferred Stock on such
record date;  provided, however,
that in no event shall the consideration to be paid upon the exercise of one
Right be less than the aggregate par value of the shares of capital stock of
the Company to be issued upon exercise of one Right. 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)      (i)      For the
purpose of any computation hereunder, the “current per share market price” of
any security (a “Security” for the purpose of this Section 11(d)(i)) 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 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 of (A) a dividend or
distribution on such Security


 


16

















 


payable
in shares of such Security or Securities convertible into such shares, or (B) 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 per share market
price shall be appropriately adjusted to reflect the current market price per
share equivalent of such Security. The closing price for each day shall be the
last sale price, regular way, reported at or prior to 4:00 P.M. Eastern time
or, in case no such sale takes place on such day, the average of the bid and
asked prices, regular way, reported as of 4:00 P.M. Eastern time, in either
case, as reported in the principal consolidated transaction reporting system
with respect to securities listed or admitted to trading on the NASDAQ or, if
the Security is not listed or admitted to trading on the NASDAQ, as reported in
the principal consolidated transaction reporting system with respect to
securities listed on the principal national securities exchange on which the
Security is listed or admitted to trading or, if the Security is not listed or
admitted to trading on any national securities exchange, the last quoted price
reported at or prior to 4:00 P.M. Eastern time or, if not so quoted, the
average of the high bid and low asked prices in the over-the-counter market, as
reported as of 4:00 P.M. Eastern time by NASDAQ or such other system then in
use, or, if on any such date the Security is 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 Security selected by the Board
of Directors of the Company. The term “Trading Day” shall mean a day on
which the principal national securities exchange on which the Security is
listed or admitted to trading is open for the transaction of business, or, if
the Security is not listed or admitted to trading on any national securities
exchange, a Business Day.


 


(ii)      For
the purpose of any computation hereunder, the “current per share market price”
of the Series C Preferred Stock shall be determined in accordance with the
method set forth in Section 11(d)(i). If the Series C Preferred Stock are not
publicly traded, the “current per share market price” of the Series C Preferred
Stock shall be conclusively deemed to be the current per share market price of
the Common Stock as determined pursuant to Section 11(d)(i) hereof
(appropriately adjusted to reflect any stock split, stock dividend or similar
transaction occurring after the date hereof), multiplied by one hundred. If
neither the Common Stock nor the Series C Preferred Stock are publicly held or
so listed or traded, “current per share market price” shall mean the fair value
per share as determined in good faith by the Board of Directors of the Company,
whose determination shall be described in a statement filed with the Rights
Agent.


 


(e)      No
adjustment in the Purchase Price shall be required unless such adjustment would
require an increase or decrease of at least 1% in the Purchase Price; provided,
however, that any adjustments which by reason of this Section 11(e) 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 one one-millionth of a share of Series C
Preferred Stock or one ten-thousandth of any other share or security as the
case may be. Notwithstanding the first sentence of this Section 11(e), 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 or (ii) the date of the expiration of the right to exercise any
Rights.


 


(f)      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


 


17

















 


stock
of the Company other than Series C Preferred Stock, 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 Series C Preferred Stock
contained in Section 11(a) through (c) hereof, inclusive, and the provisions of
Sections 7, 9 and 10 hereof with respect to the Series C Preferred Stock shall
apply on like terms to any such other shares.


 


(g)      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-hundredths of a share of Series C
Preferred Stock purchasable from time to time hereunder upon exercise of the
Rights, all subject to further adjustment as provided herein.


 


(h)      Unless the Company shall have exercised its
election as provided in Section 11(i) 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-hundredths of a share of Series C Preferred Stock (calculated
to the nearest one one-millionth of a share of Series C Preferred Stock)
obtained by (A) multiplying (x) the number of one one-hundredths of a 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 (B)
dividing the product so obtained by the Purchase Price in effect immediately
after such adjustment of the Purchase Price.


 


(i)      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-hundredths of a share
of Series C Preferred Stock 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-hundredths of a share of Series C
Preferred Stock 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 one
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 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(i), 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


 


18

















 


distributed
shall be issued, executed and countersigned in the manner provided for herein,
and shall be registered in the names of the holders of record of Right
Certificates on the record date specified in the public announcement.


 


(j)      Irrespective of any adjustment or change in
the Purchase Price or in the number of one one-hundredths of a share of Series C
Preferred Stock issuable upon the exercise of the Rights, the Right
Certificates theretofore and thereafter issued may continue to express the
Purchase Price and the number of one one-hundredths of a share of Series C
Preferred Stock which were expressed in the initial Right Certificates issued
hereunder.


 


(k)      Before taking any action that would cause an
adjustment reducing the Purchase Price below one one-hundredth of the then par
value, if any, of the Series C Preferred Stock 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 shares of Series C Preferred Stock at such
adjusted Purchase Price.


 


(l)      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 of the Series C
Preferred Stock and other capital stock or securities of the Company, if any,
issuable upon such exercise over and above the Series C Preferred Stock 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 bill or other appropriate instrument evidencing such holder’s right to
receive such additional shares upon the occurrence of the event requiring such
adjustment.


 


(m)      Anything in this Section 11 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 Series C
Preferred Stock, issuance wholly for cash of any Series C Preferred Stock at
less than the current market price, issuance wholly for cash of Series C
Preferred Stock or securities which by their terms are convertible into or exchangeable
for Series C Preferred Stock, dividends on Series C Preferred Stock payable in Series
C Preferred Stock or issuance of rights, options or warrants referred to in Section
11(b) hereof, hereafter made by the Company to holders of the Series C Preferred
Stock shall not be taxable to such stockholders.


 


(n)      In
the event that, at any time after the date of this Plan and prior to the
Distribution Date, the Company shall (i) declare or pay any dividend on the
Common Stock payable in Common Stock, or (ii) effect a subdivision, combination
or consolidation of the Common Stock (by reclassification or otherwise than by
payment of dividends in Common Stock) into a greater or lesser number of Common
Stock, then, in any such case, (A) the number of one one-hundredths of a share
of Series C Preferred Stock purchasable after such event upon proper exercise
of each Right shall be determined by multiplying the number of one
one-hundredths of a share of Series C Preferred Stock so purchasable
immediately prior to such event


 


19

















 


by
a fraction, the numerator of which is the number of Common Stock outstanding
immediately before such event and the denominator of which is the number of
Common Stock outstanding immediately after such event, and (B) each Common
Share, Series A Preferred Share and Series B Preferred Share outstanding
immediately after such event shall have issued with respect to it that number
of Rights which each Common Share, Series A Preferred Share or Series B
Preferred Share, as applicable, outstanding immediately prior to such event had
issued with respect to it. The adjustments provided for in this Section 11(n) shall
be made successively whenever such a dividend is declared or paid or such a
subdivision, combination or consolidation is effected.


 


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 (a) prepare a certificate setting forth such
adjustment and a brief statement of the facts accounting for such adjustment, (b)
file with the Rights Agent and with each transfer agent for the Common Stock, Series
A Preferred Stock, Series B Preferred Stock and the Series C Preferred Stock
and the Securities and Exchange Commission a copy of such certificate and (c) if
such adjustment occurs at any time after the Distribution Date, mail a brief
summary thereof to each holder of a Right Certificate in accordance with Section
25 hereof.


 


Section
13.      Reserved.


 


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 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 NASDAQ or, if the
Rights are not listed or admitted to trading on the NASDAQ, 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 Board of 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 Board of Directors of the Company shall be used.


 


(b)      The
Company shall not be required to issue fractions of shares of Series C
Preferred Stock (other than fractions which are integral multiples of one
one-hundredth of a


 


20
















 


share
of Series C Preferred Stock) upon exercise of the Rights or to distribute
certificates which evidence fractional shares of Series C Preferred Stock
(other than fractions which are integral multiples of one one-hundredth of a
share of Series C Preferred Stock). Fractions of shares of Series C Preferred
Stock in integral multiples of one one-hundredth of a share of Series C
Preferred Stock 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
the Series C Preferred Stock represented by such depositary receipts. In lieu
of fractional shares of Series C Preferred Stock that are not integral
multiples of one one-hundredth of a share of Series C Preferred Stock, the
Company shall 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 share of Series C Preferred
Stock. For the purposes of this Section 14(b), the current market value of a
share of Series C Preferred Stock shall be the closing price of a share of Series
C Preferred Stock (as determined pursuant to the second sentence of Section 11(d)(i)
hereof) for the Trading Day immediately prior to the date of such exercise.


 


(c)           Following the
occurrence of an event described in Section 11(a)(ii), the Company shall not be
required to issue fractions of Common Stock upon exercise of the Rights or to
distribute certificates which evidence fractional Common Shares. In lieu of
fractional Common Shares, the Company shall pay to the registered holders of
Rights 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
Common Share. For purposes of this Section 14(c), the current market value of
one Common Share shall be the closing price of one Common Share (as determined
pursuant to Section 11(d)(i)) for the Trading Day immediately prior to the date
of such exercise.


 


(d)           The holder of a
Right, by the acceptance of the Right, expressly waives such holder’s right to
receive any fractional Rights or any fractional shares upon exercise of a Right
(except as provided above).


 


(e)           Whenever a payment
for fractional Rights or fractional shares is to be made by the Rights Agent,
the Company shall (i) promptly prepare and deliver to the Rights Agent a
certificate setting forth in reasonable detail the facts related to such
payment and the prices and/or formulas utilized in calculating such payments,
and (ii) provide sufficient monies to the Rights Agent in the form of fully
collected funds to make such payments.


 


Section
15.      Rights
of Action. (a) All rights of action in respect of this Plan, excepting the
rights of action given to the Rights Agent under Section 18 hereof, are vested
in the respective registered holders of the Right Certificates (or, prior to
the Distribution Date, the registered holders of the Common Stock, Series A
Preferred Stock or Series B Preferred Stock); and any registered holder of any
Right Certificate (or, prior to the Distribution Date, of the Common Stock, Series
A Preferred Stock or Series B Preferred Stock), without the consent of the
Rights Agent or of the holder of any other Right Certificate (or, prior to the
Distribution Date, of the Common Stock, Series A Preferred Stock or Series B
Preferred Stock), may, in such holder’s own behalf and for such holder’s own
benefit, enforce, and may institute and maintain any suit, action or proceeding
against the Company to enforce, or otherwise act in respect of,


 


21

















 


such
holder’s right to exercise the Rights evidenced by such Right Certificate in
the manner provided in such Right Certificate and in this Plan. 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 Plan, and will be entitled to
specific performance of the obligations under, and injunctive relief against
actual or threatened violations of the obligations of any Person subject to,
this Plan.


 


(d)        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,
judgment or ruling issued by any court of competent jurisdiction or by any
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
commercially reasonable efforts to have any such order, decree, judgment or
ruling lifted or otherwise overturned as soon as possible.


 


Section
16.      Plan of Right 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 the Common Stock, Series
A Preferred Stock or Series B Preferred Stock;


 


(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, duly endorsed or accompanied
by a proper instrument of transfer; and


 


(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
Stock certificate, the associated Series A Preferred Stock certificate or the
associated Series B Preferred Stock 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, the associated
Common Stock certificate, the associated Series A Preferred Stock certificate
or the associated Series B Preferred Stock 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 or be liable hereunder.


 


Section
17.      Right
Certificate Holder Not Deemed a Stockholder. No holder, as such, of any
Right Certificate shall be entitled to vote, receive dividends or be deemed for
any purpose the holder of the shares of Series C Preferred Stock 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 stockholder of the Company or any
right to vote for the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of


 


22

















 


meetings
or other actions affecting stockholders (except as provided in Section 25
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.


 


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 other disbursements
incurred in the administration and execution of this Plan 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 Plan, 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 Plan in reliance upon any Right Certificate or
certificate for the Series C Preferred Stock or Common Stock or Series A Preferred
Stock or Series B Preferred Stock 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, or
otherwise upon the advice of counsel as set forth in Section 20 hereof.


 


In
no event shall the Rights Agent or its directors, officers, agents and
employees be liable for any special, indirect or consequential damages from any
action taken or omitted to be taken by it or them hereunder or in connection
herewith even if advised of the possibility of such damages.  The indemnification provisions contained in
this Section 18 shall survive any termination of services under this Plan,
including resignation or removal of the Rights Agent.


 


Section
19.      Merger
or Consolidation or Change of Name of Rights Agent.  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 stock transfer or corporate trust powers of the Rights Agent
or any successor Rights Agent, shall be the successor to the Rights Agent under
this Plan 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 Plan,
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 Right 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 Plan.


 


23

















 


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 Plan.


 


Section
20.      Duties of Rights Agent. The Rights
Agent undertakes the duties and obligations imposed by this Plan 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 Plan the Rights Agent shall deem it necessary or desirable that any
fact or matter (including, without limitation, the identity of any Acquiring
Person and the determination of “current market price”) 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 Authorized Officer 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 Plan in reliance upon such certificate.


 


(c)      The
Rights Agent shall be liable hereunder to the Company and any other Person 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 Plan 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 Plan or the execution and delivery hereof (except the due execution
hereof by the Rights Agent) or in respect of the validity or execution of any
Right Certificate (except its countersignature thereof); nor shall it be
responsible for any breach by the Company of any covenant or condition
contained in this Plan or in any Right Certificate; nor shall it be responsible
for any change in the exercisability of the Rights (including the Rights
becoming void pursuant to Section 11(a)(ii) hereof) or any adjustment in the
terms of the Rights (including the manner, method or amount thereof) provided
for in Section 3, 11, 23 or 24 hereof, or the ascertaining of the existence of
facts that would require any such change or adjustment (except with respect to
the exercise of Rights evidenced by Right Certificates after actual notice that
such


 


24

















 


change
or adjustment is required); nor shall it by any act hereunder be deemed to make
any representation or warranty as to the authorization or reservation of any Series
C Preferred Stock to be issued pursuant to this Plan or any Right Certificate
or as to whether any Series C Preferred Stock 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 Plan.


 


(g)      The
Rights Agent is hereby authorized and directed to accept instructions with
respect to the performance of its duties hereunder from any Authorized Officer,
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 by it in
good faith in accordance with instructions of any such officer or for any delay
in acting while waiting for those instructions.


 


(h)      The
Rights Agent and any stockholder, 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 Plan. 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 may execute and exercise any of the rights or powers hereby vested
in it or perform any duty hereunder either itself or by or through its
attorneys or agents, and the Rights Agent shall not be answerable or
accountable for any act, default, neglect or misconduct of any such attorneys
or agents or for any loss to the Company resulting from any such act, default,
neglect or misconduct, provided that reasonable care was exercised in the
selection and continued employment thereof.


 


(j)            At any time and
from time to time after the Distribution Date, upon the request of the Company,
the Rights Agent shall deliver to the Company a list, as of the most recent
practicable date (or as of such earlier date as may be specified by the
Company), of the holders of record of the Rights.


 


Section
21.      Change of Rights Agent. The Rights
Agent or any successor Rights Agent may resign and be discharged from its
duties under this Plan upon 30 days’ notice in writing mailed to the Company
and to each transfer agent of the Common Stock, Series A Preferred Stock, Series
B Preferred Stock and Series C Preferred Stock by registered or certified
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 Stock, Series A Preferred Stock, Series B
Preferred Stock and Series C Preferred Stock 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


 


25

















 


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 (which holder shall, with such notice, submit such holder’s 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
entity organized and doing business under the laws of the United States or of
the State of New York (or of any other state of the United States so long as
such corporation or other entity is authorized to do business as a banking
institution in the State of New York), in good standing, which is authorized
under such laws to exercise corporate trust 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. 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 Stock, Series A Preferred Stock, Series B Preferred Stock
and Series C Preferred Stock, 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 Plan 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 the Board of Directors of
the Company 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
Plan.


 


Section
23.      Redemption. (a) The Board of Directors
of the Company may, at its option, at any time prior to such time as any Person
becomes an Acquiring Person, redeem all but not less than all the then
outstanding Rights at a redemption price of $.001 per Right, appropriately
adjusted to reflect any stock split, stock dividend or similar transaction
occurring after the date hereof (such redemption price being hereinafter
referred to as the “Redemption Price”). The redemption of the Rights by
the Board of Directors of the Company may be made effective at such time, on
such basis and with such conditions as the Board of Directors of the Company,
in its sole discretion, may establish. 
The Company may, at its option, pay the Redemption Price in cash, shares
of Common Stock (based on the current per share market price of the Common Stock
at the time of redemption as determined pursuant to Section 11(d)(i) hereof) or
any other form of consideration deemed appropriate by the Board.


 


(b)           Immediately upon the
action of the Board of Directors of the Company ordering the redemption of the
Rights pursuant to paragraph (a) of this Section 23, and without any further
action and without any notice, the right to exercise the Rights will terminate
and the


 


26

















 


only
right thereafter of the holders of Rights shall be to receive the Redemption Price.
The Company shall promptly give public notice of any such redemption; provided,
however, that the failure to give, or any defect in, any such notice
shall not affect the validity of such redemption. Within 10 days after such
action of the Board of Directors of the Company ordering the redemption of the
Rights, the Company shall mail a notice of redemption to all the holders of the
then outstanding Rights at their last addresses as they appear upon the
registry books of the Rights Agent or, prior to the Distribution Date, on the
registry books of the transfer agent for the Common Stock, Series A Preferred
Stock or Series B Preferred Stock. Any notice which is mailed in the manner
herein provided shall be deemed given, whether or not the holder receives the
notice. Each such notice of redemption will state the method by which the
payment of the Redemption Price will be made. Neither the Company nor any of
its Affiliates or Associates may redeem, acquire or purchase for value any
Rights at any time in any manner other than that specifically set forth in this
Section 23 or in Section 24 hereof, and other than in connection with the
purchase of Common Stock, Series A Preferred Stock or Series B Preferred Stock
prior to the Distribution Date.


 


(c)           In the case of a
redemption under Section 23(a) hereof, the Company may, at its option,
discharge all of its obligations with respect to the Rights by (i) issuing a
press release announcing the manner of redemption of the Rights and (ii) mailing
payment of the Redemption Price to the registered holders of the Rights at
their last addresses as they appear on the registry books of the Rights Agent
or, prior to the Distribution Date, on the registry books of the transfer agent
of the Common Stock, Series A Preferred Stock or Series B Preferred Stock, and
upon such action, all outstanding Right Certificates shall be void without any
further action by the Company.


 


Section
24.      Exchange. (a) The Board of Directors of
the Company may, at its option, at any time after any Person becomes an
Acquiring Person, 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 Stock at an exchange ratio
of one Common Share per Right, appropriately adjusted to reflect any adjustment
in the number of Rights pursuant to Section 11(i) (such exchange ratio being
hereinafter referred to as the “Exchange Ratio”); provided that any
Right that immediately prior to the Distribution Date was evidenced by a
certificate that also evidenced Series B Preferred Stock may not be exchanged
for Common Stock pursuant to this Section 24 until such Right is transferred to
a third party in a Widely Dispersed Offering (as such term is defined in the
Articles of Amendment of the Series B Preferred Stock).


 


(b)      Immediately upon the action of the Board of
Directors of the Company ordering the exchange of any Rights pursuant to
paragraph (a) of this Section 24 and without any further action and without any
notice, the right to exercise such Rights shall terminate and the only right
thereafter of a holder of such Rights shall be to receive that number of Common
Stock equal to the number of such Rights held by such holder multiplied by the
Exchange Ratio. The Company shall promptly give public notice of any such
exchange; provided, however, that the failure to give, or any
defect in, such notice shall not affect the validity of such exchange. The
Company promptly shall mail a notice of any such exchange to all of the holders
of such Rights at their last addresses as they appear upon the registry books
of the Rights Agent. Any notice


 


27

















 


which
is mailed in the manner herein provided shall be deemed given, whether or not
the holder receives the notice. Each such notice of exchange will state the
method by which the exchange of the Common Stock for Rights will be effected,
and, in the event of any partial exchange, the number of Rights which will be
exchanged. Any partial exchange shall be effected  pro rata 
based on the number of Rights (other than Rights which have become void
pursuant to the provisions of Section 11(a)(ii) hereof) held by each holder of
Rights.


 


(c)     In
the event that there shall not be sufficient Common Stock issued but not
outstanding or authorized but unissued to permit any exchange of Rights as
contemplated in accordance with this Section 24, the Company shall take all
such action as may be necessary to authorize additional Common Stock for
issuance upon exchange of the Rights. In the event the Company shall, after
good faith effort, be unable to take all such action as may be necessary to
authorize such additional Common Stock, the Company shall substitute, for each Common
Share that would otherwise be issuable upon exchange of a Right, a number of
shares of Series C Preferred Stock or fraction thereof such that the current
per share market price of one share of Series C Preferred Stock multiplied by
such number or fraction is equal to the current per share market price of one
Common Share as of the date of issuance of such shares of Series C Preferred
Stock or fraction thereof.


 


(d)      The
Company shall not be required to issue fractions of Common Stock or to distribute
certificates representing fractions of shares of Common Stock.  In lieu of such fractional Common Stock, the
Company shall pay to the registered holders of the Right Certificates with
regard to which such fractional Common Stock would otherwise be issuable an
amount in cash equal to the same fraction of the current market value of a
whole Common Share. For the purposes of this paragraph (d), the current market
value of a whole Common Share shall be the closing price of a Common Share (as
determined pursuant to the second sentence of Section 11(d)(i) hereof) for the
Trading Day immediately prior to the date of exchange pursuant to this Section 24.


 


Section
25.      Notice
of Certain Events. (a) In case the Company shall, at any time after the
Distribution Date, propose (i) to pay any dividend payable in stock of any
class to the holders of the Series C Preferred Stock or to make any other
distribution to the holders of the Series C Preferred Stock (other than a
regular quarterly cash dividend), (ii) to offer to the holders of the Series C
Preferred Stock rights or warrants to subscribe for or to purchase any
additional shares of Series C Preferred Stock or shares of stock of any class
or any other securities, rights or options, (iii) to effect any reclassification
of the Series C Preferred Stock (other than a reclassification involving only
the subdivision of outstanding shares of Series C Preferred Stock), (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 50% or more of the assets or
earning power of the Company and its Subsidiaries (taken as a whole) to, any
other Person, (v) to effect the liquidation, dissolution or winding up of the
Company, or (vi) to declare or pay any dividend on the Common Stock payable in
Common Stock or to effect a subdivision, combination or consolidation of the
Common Stock (by reclassification or otherwise than by payment of dividends in
Common Stock), then, in each such case, the Company shall give to each holder
of a Right Certificate, in accordance with Section 26 hereof, a notice of such
proposed action, which shall specify the


 


28

















 


record
date for the purposes of such stock dividend, or distribution of rights 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 Stock, Series A
Preferred Stock, Series B Preferred Stock and/or Series C Preferred Stock, 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) above at least 10 days prior to the
record date for determining holders of the Series C Preferred Stock for
purposes of such action, and, in the case of any such other action, at least 10
days prior to the date of the taking of such proposed action or the date of
participation therein by the holders of the Common Stock, Series A Preferred
Stock, Series B Preferred Stock and/or Series C Preferred Stock, whichever
shall be the earlier.


 


(b)                       In case the
event set forth in Section 11(a)(ii) hereof shall occur, then the Company
shall, as soon as practicable thereafter, give to each holder of a Right
Certificate, in accordance with Section 26 hereof, a notice of the occurrence
of such event, which notice shall describe such event and the consequences of
such event to holders of Rights under Section 11(a)(ii) hereof.


 


Section
26.      Notices.
Notices or demands authorized by this Plan 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 overnight delivery service or first-class
mail, postage prepaid, addressed (until another address is filed in writing
with the Rights Agent) as follows:


 


West
Coast Bancorp

5335 Meadows Road, Suite 201

Lake Oswego, Oregon 97035

Attention: General Counsel


 


Subject
to the provisions of Section 21 hereof, any notice or demand authorized by this
Plan 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 overnight delivery service or first-class mail, postage prepaid,
addressed (until another address is filed in writing with the Company) as
follows:


 


Wells
Fargo Bank, National Association

Shareowner Services

161 North Concord Exchange

South St. Paul, MN  55075

Attn: Account Manager


 


Notices
or demands authorized by this Plan 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 Company.


 


Section
27.      Supplements and Amendments. The Company
may from time to time supplement or amend this Plan without the approval of any
holders of Right Certificates in order to cure any ambiguity, to correct or
supplement any provision contained herein which may be defective or
inconsistent with any other provisions herein, to shorten or lengthen any time
period


 


29

















 


hereunder,
or to amend or make any other provisions with respect to the Rights which the
Company may deem necessary or desirable, any such supplement or amendment to be
evidenced by a writing signed by the Company and the Rights Agent; provided,
however, that, from and after such time as any Person becomes an
Acquiring Person  and does not
become an Exempt Person prior to the Distribution Date, this Plan shall not be
amended in any manner which would adversely affect the interests of the holders
of Rights (other than an Acquiring Person or an Affiliate or Associate of an
Acquiring Person).


 


Section
28.      Successors. All the covenants and
provisions of this Plan 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 Plan. Nothing in this
Plan 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 Stock, Series A Preferred Stock or Series B
Preferred Stock) any legal or equitable right, remedy or claim under this Plan;
but this Plan shall be for the sole and exclusive benefit of the Company, the
Rights Agent and the registered holders of the Right Certificates (and, prior
to the Distribution Date, the Common Stock, Series A Preferred Stock or Series B
Preferred Stock).


 


Section
30.      Severability. If any term, provision,
covenant or restriction of this Plan 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 Plan
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated.


 


Section
31.      Governing Law. This Plan and each Right
Certificate issued hereunder shall be deemed to be a contract made under the
laws of the State of Delaware 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
32.      Counterparts. This Plan 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. 
A signature to this Plan transmitted electronically shall have the same
authority, effect, and enforceability as an original signature.


 


Section
33.      Descriptive Headings. Descriptive
headings of the several Sections of this Plan are inserted for convenience only
and shall not control or affect the meaning or construction of any of the
provisions hereof.


 


Section
34.      Determinations and Actions by the Board.
For all purposes of this Plan, any calculation of the number of Common Stock
outstanding at any particular time, including for purposes of determining the
particular percentage of such outstanding Common Stock of which any Person is
the Beneficial Owner, will be made in accordance with, as the Board of
Directors deems to be applicable, the last sentence of Rule 13d-3(d)(1)(i) of
the General Rules and Regulations under the Exchange Act or the provisions of Section
382. The Board of


 


30

















 


Directors
of the Company will have the exclusive power and authority to administer this
Plan and to exercise all rights and powers specifically granted to the Board of
Directors of the Company or to the Company, or as may be necessary or advisable
in the administration of this Plan, including without limitation the right and
power to (i) interpret the provisions of this Plan (including without
limitation Section 27, this Section 34 and other provisions hereof relating to
its powers or authority hereunder) and (ii) make all determinations deemed
necessary or advisable for the administration of this Plan (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 Board of Directors of the Company in good faith will (x) be
final, conclusive and binding on the Company, the Rights Agent, the holders of
the Rights and all other parties and (y) not subject the Board of Directors of
the Company to any liability to any Person, including without limitation the
Rights Agent and the holders of the Rights.


 


Section
35.             Process to Seek
Exemption. Any Person who desires to effect any acquisition of Common Stock
that would, if consummated, result in such Person (together with its Affiliates
and Associates) beneficially owning 4.9% or more of the then-outstanding Common
Stock (or, in the case of an Existing Holder, additional shares of Common Stock
representing 0.2% or more of the then-outstanding Common Stock) (a “Requesting
Person”) may, prior to the acquisition of the Common Stock and in
accordance with this Section 35, request that the Board grant an exemption with
respect to such acquisition under this Plan so that such acquisition would be
deemed to be an “Exempt Transaction” for purposes of this Plan (an “Exemption
Request”). An Exemption Request shall be in proper form and shall be
delivered by registered mail, return receipt requested, to the Secretary of the
Company at the principal executive office of the Company. To be in proper form,
an Exemption Request shall set forth (i) the name and address of the Requesting
Person, (ii) the number and percentage of shares of Common Stock then
beneficially owned by the Requesting Person, together with all Affiliates and
Associates of the Requesting Person, and (iii) a reasonably detailed
description of the transaction or transactions by which the Requesting Person
would propose to acquire Beneficial Ownership of Common Stock aggregating 4.9%
or more of the then outstanding Common Stock (or, in the case of an Existing
Holder, additional shares of Common Stock representing 0.2% or more of the
then-outstanding Common Stock) and the maximum number and percentage of shares
of Common Stock that the Requesting Person proposes to acquire. The Board shall
make a determination whether to grant an exemption in response to an Exemption
Request as promptly as practicable (and, in any event, within ten (10) Business
Days) after receipt thereof; provided, that the failure of the Board to make a
determination within such period shall be deemed to constitute the denial by
the Board of the Exemption Request.  Any
exemption granted hereunder may be granted in whole or in part, and may be
subject to limitations or conditions (including a requirement that the Requesting
Person agree that it will not acquire Beneficial Ownership of shares of Common
Stock in excess of the maximum number and percentage of shares approved by the
Board), in each case as and to the extent the Board shall determine necessary
or desirable.


 


Any
Exemption Request may be submitted on a confidential basis and, except to the
extent required by applicable law, the Company shall maintain the
confidentiality of such Exemption Request and the Board’s determination with
respect thereto.


 


31

















 


IN
WITNESS WHEREOF, the parties hereto have caused this Plan to be duly executed
and attested, all as of the day and year first above written.


 


 


	
   

  	
   

  	
  West
  Coast Bancorp

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By 

  	
  /s/
  Robert D. Sznewajs

  
	
   

  	
   

  	
   

  	
  Name:
  Robert D. Sznewajs

  
	
   

  	
   

  	
   

  	
  Title:
  President & CEO

  
	
   

  	
   

  	
   

  
	
  COUNTERSIGNED
  BY:

  	
   

  	
   

  
	
  Wells
  Fargo Bank, National Association

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By 

  	
  /s/
  Pamela E. Herlich

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Pamela
  E. Herlich

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President,

  Account Management

  Wells Fargo Shareowner Services

  	
   

  	
   

  



 


32






 












 


Exhibit A


 


FORM


 


OF


 


ARTICLES OF AMENDMENT


 


TO DESIGNATE THE TERMS OF


 


 


SERIES C JUNIOR PARTICIPATING PREFERRED STOCK


 


OF


 


WEST COAST BANCORP


 


Pursuant to Section 60.131 of the Oregon
Business


Corporation Act


 


West Coast Bancorp, a corporation organized and existing under laws of
the State of Oregon (the “Company”), in accordance with the provisions of
Sections 60.004, 60.131, 60.134 and 60.301 of the Oregon Business Corporation
Act, DOES HEREBY CERTIFY:


 


The board of directors of the Company (the “Board of Directors”), in
accordance with the Restated Articles of Incorporation and the Amended and
Restated Bylaws of the Company and applicable law, adopted the following
resolution on October 22, 2009, creating a series of 2,500,000 shares of
Preferred Stock of the Company designated as “Series C Junior
Participating Preferred Stock”.


 


RESOLVED, that pursuant to the provisions of the Restated Articles of
Incorporation and the Amended and Restated Bylaws of the Company and applicable
law, a series of Preferred Stock, no par value, of the Company be and hereby is
created, and that the designation and number of shares of such series, and the
voting and other powers, designations, preferences and relative, participating,
optional or other rights, and the qualifications, limitations and restrictions
thereof, of the shares of such series, are as follows:


 


Section 1.                      Designation
and Amount. The shares of such series shall be designated as “Series C
Junior Participating Preferred Stock” (the “Series C Preferred Stock”) and
the number of shares constituting the Series C Preferred Stock shall be
2,500,000.  Such number of shares may be
increased or decreased by resolution of the Board of Directors; provided,
that no decrease shall reduce the number of shares of Series C Preferred
Stock to a number less than the number of shares then outstanding plus the
number of shares reserved for issuance upon the


 


33

















 


exercise of outstanding options, rights or warrants or upon the conversion
of any outstanding securities issued by the Company convertible into Series C
Preferred Stock.


 


Section 2.                      Dividends
and Distributions.


 


(A)                            Subject
to the rights of the holders of any shares of any series of Preferred Stock (or
any similar stock) ranking prior and superior to the Series C Preferred
Stock with respect to dividends, the holders of shares of Series C
Preferred Stock shall be entitled to receive, when, as and if declared by the
Board of Directors out of funds legally available for the purpose, quarterly
dividends payable in cash on the first day of March, June, September and December in
each year (each such date being referred to herein as a “Quarterly Dividend
Payment Date”), commencing on the first Quarterly Dividend Payment Date after the
first issuance of a share or fraction of a share of Series C Preferred
Stock, in an amount per share (rounded to the nearest cent), subject to the
provision for adjustment hereinafter set forth, equal to 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, declared on the Common Stock, no par value per share (the
“Common Stock”), of the Company since the immediately preceding Quarterly
Dividend Payment Date or, with respect to the first Quarterly Dividend Payment
Date, since the first issuance of any share or fraction of a share of Series C
Preferred Stock, other than, in each case, a dividend payable in shares of
Common Stock or a subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise). In the event the Company shall at any time
declare or pay any dividend on the Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser
number of shares of Common Stock, then in each such case the amount to which
holders of shares of Series C Preferred Stock were entitled immediately
prior to such event under the preceding sentence shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.


 


(B)                              The
Company shall declare a dividend or distribution on the Series C Preferred
Stock as provided in paragraph (A) of this Section immediately after
it declares a dividend or distribution on the Common Stock (other than a
dividend payable in shares of Common Stock).


 


(C)                              Dividends,
to the extent payable as provided in paragraphs (A) and (B) of this
Section, shall begin to accrue and be cumulative on outstanding shares of Series C
Preferred Stock 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 shares of Series C
Preferred Stock entitled to receive a quarterly dividend and before such 


 


34

















 


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 shares of Series C Preferred Stock in an
amount less than the total amount of such dividends at the time accrued and
payable on such shares shall be allocated pro rata on a share-by-share basis
among all such shares at the time outstanding. The Board of Directors may fix a
record date for the determination of holders of shares of Series C
Preferred Stock 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.


 


Section 3.                      Voting
Rights. The holders of shares of Series C Preferred Stock shall have
the following voting rights:


 


(A)                            Subject
to the provision for adjustment hereinafter set forth, each share of Series C
Preferred Stock shall entitle the holder thereof to 100 votes on all matters
submitted to a vote of the stockholders of the Company. In the event the
Company shall at any time declare or pay any dividend on the Common Stock
payable in shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in each such case the
number of votes per share to which holders of shares of Series C Preferred
Stock 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
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were outstanding
immediately prior to such event.


 


(B)                               Except
as otherwise provided herein, in any other Articles of Amendment creating a
series of Preferred Stock or any similar stock, or by law, the holders of
shares of Series C Preferred Stock and the holders of shares of Common
Stock and any other capital stock of the Company having general voting rights
shall vote together as one class on all matters submitted to a vote of
stockholders of the Company.


 


(C)                               Except
as set forth herein, or as otherwise provided by law, holders of Series C
Preferred Stock shall have no special voting rights and their consent shall not
be required (except to the extent they are entitled to vote with holders of
Common Stock as set forth herein) for taking any corporate action.


 


(D)                              Reference
is made to that certain Tax Benefit Preservation Plan (the “Plan”), dated as of
October 23, 2009, between the Company and Wells Fargo Bank, National
Association, as rights agent. 
Notwithstanding anything in this Section 3, each share of Series C
Preferred Stock that was received by the holder thereof as a result of the
exercise of a Right (as defined in the Plan) that immediately prior to the
Distribution Date (as defined in the Plan) was evidenced by a certificate that
also evidenced the Company’s Mandatorily Convertible Cumulative Participating
Preferred Stock, Series B (the “Series B Preferred Stock”) shall have
no voting rights until transferred to a third party in a Widely Dispersed
Offering (as such term is defined in the Articles of Amendment of the Series B



 


35

















 


Preferred Stock).


 


Section 4. Certain Restrictions.


 


(A)                             Whenever
quarterly dividends or other dividends or distributions payable on the Series C
Preferred Stock as provided in Section 2 are in arrears, thereafter and
until all accrued and unpaid dividends and distributions, whether or not
declared, on shares of Series C Preferred Stock outstanding shall have
been paid in full, the Company shall not:


 


(i)                     declare or
pay dividends, or make any other distributions, on any shares of stock ranking
junior (either as to dividends or upon liquidation, dissolution or winding up)
to the Series C Preferred Stock;


 


(ii)                  declare or pay
dividends, or make any other distributions, on any shares of stock ranking on a
parity (either as to dividends or upon liquidation, dissolution or winding up)
with the Series C Preferred Stock, except dividends paid ratably on the Series C
Preferred Stock and all such parity stock 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 shares of any stock ranking junior
(either as to dividends or upon liquidation, dissolution or winding up) to the Series C
Preferred Stock, provided that the Company may at any time redeem, purchase or
otherwise acquire shares of any such junior stock in exchange for shares of any
stock of the Company ranking junior (either as to dividends or upon dissolution,
liquidation or winding up) to the Series C Preferred Stock; or


 


(iv)              redeem or purchase
or otherwise acquire for consideration any shares of Series C Preferred
Stock, or any shares of stock ranking on a parity with the Series C
Preferred Stock, except in accordance with a purchase offer made in writing or
by publication (as determined by the Board of Directors) to all holders of such
shares upon such terms as the Board of Directors, 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
Company shall not permit any subsidiary of the Company to purchase or otherwise
acquire for consideration any shares of stock of the Company unless the Company
could, under paragraph (A) of this Section 4, purchase or otherwise
acquire such shares at such time and in such manner.


 


Section 5. Reacquired Shares. Any shares of Series C
Preferred Stock purchased or otherwise acquired by the Company 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 shares of Preferred Stock and may be reissued as part of a new series
of Preferred Stock subject to the conditions and restrictions on issuance set
forth herein, in the


 


36

















 


Restated Articles of Incorporation, or in any other Articles of
Amendment creating a series of Preferred Stock or any similar stock or as
otherwise required by law.


 


Section 6.                      Liquidation,
Dissolution or Winding Up. Upon any liquidation, dissolution or winding up
of the Company, no distribution shall be made (1) to the holders of shares
of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series C Preferred Stock unless, prior
thereto, the holders of shares of Series C Preferred Stock 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 shares of Series C Preferred Stock
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 shares of Common
Stock, or (2) to the holders of shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or winding up) with
the Series C Preferred Stock, except distributions made ratably on the Series C
Preferred Stock and all such parity stock in proportion to the total amounts to
which the holders of all such shares are entitled upon such liquidation,
dissolution or winding up. In the event the Company shall at any time declare
or pay any dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the outstanding shares
of Common Stock (by reclassification or otherwise than by payment of a dividend
in shares of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the aggregate amount to which holders of shares
of Series C Preferred Stock were entitled immediately prior to such event
under the proviso in clause (1) of the preceding sentence shall be
adjusted by multiplying such amount by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.


 


Section 7.                        Consolidation,
Merger, etc.  In case the Company shall enter into any consolidation,
merger, combination, conversion, share exchange or other transaction in which
the shares of Common Stock are exchanged for or changed into other stock, a
member’s interest, a partnership interest, a beneficial interest in a trust or
other owner’s interest, or securities, cash and/or any other property, then in
any such case each share of Series C Preferred Stock shall at the same
time be similarly exchanged or changed into an amount per share, subject to the
provision for adjustment hereinafter set forth, equal to 100 times the
aggregate amount of stock, a member’s interest, a partnership interest, a
beneficial interest in a trust or other owner’s interest, securities, cash
and/or any other property (payable in kind), as the case may be, into which or
for which each share of Common Stock is changed or exchanged. In the event the
Company shall at any time declare or pay any dividend on the Common Stock
payable in shares of Common Stock, or effect a subdivision or combination or consolidation
of the outstanding shares of Common Stock (by reclassification or otherwise
than by payment of a dividend in shares of Common Stock) into a greater or
lesser number of shares of Common Stock, then in each such case the amount set
forth in the preceding sentence with respect to the exchange or change of
shares of Series C Preferred Stock shall be adjusted by multiplying such
amount by a fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately prior to
such event.


 


37

















 


Section 8.                      No
Redemption. The shares of Series C Preferred Stock shall not be
redeemable.


 


Section 9.                      Rank.
The Series C Preferred Stock shall rank, with respect to the payment of
dividends and the distribution of assets, junior to all series of any other
class of the Company’s Preferred Stock.


 


Section 10.                Amendment.
The Restated Articles of Incorporation of the Company shall not be amended in
any manner which would materially alter or change the powers, preferences or
special rights of the Series C Preferred Stock so as to affect them
adversely without the affirmative vote of the holders of at least two-thirds of
the outstanding shares of Series C Preferred Stock, voting together as a
single class.


 


Exhibit B


 


Form of Right Certificate


 


	
  Certificate No. R-

  	
  Rights

  



 


NOT EXERCISABLE AFTER OCTOBER 23, 2012 OR EARLIER IF REDEMPTION OR EXCHANGE
OCCURS OR AS OTHERWISE SPECIFIED IN THE AGREEMENT. THE RIGHTS ARE SUBJECT TO
REDEMPTION AT $.001 PER RIGHT AND TO EXCHANGE ON THE TERMS SET FORTH IN THE
AGREEMENT.


 


Right Certificate


 


WEST COAST BANCORP


 


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 Plan, dated as of October 23, 2009 (the
“Plan”), between West Coast Bancorp, an Oregon corporation (the “Company”), and
Wells Fargo Bank, National Association (the “Rights Agent”), to purchase from
the Company at any time after the Distribution Date (as such term is defined in
the Plan) and prior to 5:00 P.M., New York City time, on October 25,
2012 (or earlier as specified in the Plan) at the principal office of the
Rights Agent, or at the office of its successor as Rights Agent, one
one-hundredth of a fully paid non-assessable share of Series C Junior
Participating Preferred Stock, par value $0.001 per share, of the Company (the
“Preferred Shares”), at a purchase price of $30.00 per one one-hundredth of a
Preferred Share (the “Purchase Price”), upon presentation and surrender of this
Right Certificate with the Form of Election to Purchase duly executed. The
number of Rights evidenced by this Right Certificate (and the number of one
one-hundredths of a Preferred Share which may be purchased upon exercise
hereof) set forth above, and the Purchase Price set forth above, are the number
and Purchase Price as of October 23, 2009, based on the Preferred Shares
as constituted at such date. As provided in the Plan, the Purchase Price and
the number of one one-hundredths


 


38

















 


of a Preferred Share 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 Plan, which terms, provisions and conditions are hereby
incorporated herein by reference and made a part hereof and to which Plan
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 Plan are on
file at the principal executive offices of the Company and the offices of the
Rights Agent.


 


This Right Certificate, with or without other Right Certificates, upon
surrender at the principal office of the Rights Agent, 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 Plan, the Rights evidenced by this
Right Certificate (i) may be redeemed by the Company at a redemption price
of $.001 per Right or (ii) may be exchanged in whole or in part for
Preferred Shares or shares of the Company’s Common Stock, no par value per
share.


 


No fractional Preferred Shares will be issued upon the exercise of any
Right or Rights evidenced hereby (other than fractions which are integral
multiples of one one-hundredth of a Preferred Share, 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 Plan.


 


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 Plan or
herein be construed to confer upon the holder hereof, as such, any of the
rights of a stockholder of the Company or any right to vote for the election of
directors or upon any matter submitted to stockholders at any meeting thereof,
or to give or withhold consent to any corporate action, or to receive notice of
meetings or other actions affecting stockholders (except as provided in the
Plan), or to receive dividends or subscription rights, or otherwise, until the
Right or Rights evidenced by this Right Certificate shall have been exercised
as provided in the Plan.


 


This Right Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned manually or by facsimile by the Rights
Agent.


 


WITNESS the facsimile signature of the proper officers of the Company
and its corporate seal.  Dated as of
        ,
      .


 


	
   

  	
  WEST COAST BANCORP

  



 


39

















 


	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


	
  COUNTERSIGNED BY:

  
	
  WELLS FARGO BANK, NATIONAL ASSOCIATION

  
	
   

  
	
  By

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


40
















 


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.)


 


FOR VALUE RECEIVED
                                
hereby sells, assigns and transfers unto                                         





 





(Please print name and
address of transferee)


 




 





this Right Certificate, together with all right, title
and interest therein, and does hereby irrevocably constitute and appoint
                   
Attorney, to transfer the within Right Certificate on the books of the
within-named Company, with full power of substitution.


 


	
  Dated:

  	
   

  	
   

  



 


	
   

  	
   

  
	
   

  	
  Signature

  



 


 


Signature Medallion Guaranteed:


 


All Guarantees must be made by a financial institution (such as a bank
or broker) which is a participant in the Securities Transfer Agents Medallion
Program (“STAMP”), the New York Stock Exchange, Inc. Medallion Signature
Program (“MSP”), or the Stock Exchanges Medallion Program (“SEMP”) and must not
be dated.  Guarantees by a notary public
are not acceptable.


 


The undersigned hereby certifies that the Rights evidenced by this
Right Certificate are not beneficially owned by an Acquiring Person or an
Affiliate or Associate thereof (as defined in the Plan).


 


	
   

  	
   

  
	
   

  	
  Signature

  



 


Form of Reverse Side of Right
Certificate — continued


 


41

















 


FORM OF ELECTION TO PURCHASE


 


(To be executed if holder desires to exercise


 Rights
represented by the Right Certificate.)


 


To: WEST COAST BANCORP


 


The undersigned hereby irrevocably elects to exercise
                                   Rights
represented by this Right Certificate to purchase the Preferred Shares issuable
upon the exercise of such Rights and requests that certificates for such
Preferred Shares be issued in the name of:


 


Please insert social security


or other identifying number


 




 





(Please print
name and address)




 





 


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


 




 





(Please print
name and address)




 





 


	
  Dated:

  	
   

  	
   

  



 


	
   

  	
   

  
	
   

  	
  Signature

  



 


Signature Medallion Guaranteed:


 


All Guarantees must be made by a financial institution (such as a bank
or broker) which is a participant in the Securities Transfer Agents Medallion
Program (“STAMP”), the NASDAQ, Inc. Medallion Signature Program (“MSP”),
or the Stock Exchanges Medallion Program (“SEMP”) and must not be dated.
Guarantees by a notary public are not acceptable.


 


The undersigned hereby certifies that the Rights evidenced by this
Right Certificate are not beneficially owned by an Acquiring Person or an
Affiliate or Associate thereof (as defined in the Plan).


 


	
   

  	
   

  	
   

  
	
   

  	
  Signature

  



 


42

















 


NOTICE


 


The signature in the Form of Assignment or Form of Election
to Purchase, as the case may be, must conform to the name as written upon the
face of this Right Certificate in every particular, without alteration or
enlargement or any change whatsoever.


 


In the event the certification set forth above in the Form of
Assignment or the Form of Election to Purchase, as the case may be, is not
completed, the Company and the Rights Agent will deem the beneficial owner of
the Rights evidenced by this Right Certificate to be an Acquiring Person or an
Affiliate or Associate thereof (as defined in the Plan) and such Assignment or
Election to Purchase will not be honored.


 


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Exhibit C


 


SUMMARY OF RIGHTS TO PURCHASE


SERIES C PREFERRED STOCK


 


Introduction


 


Our Company, West Coast Bancorp, an Oregon corporation, has entered
into a Tax Benefit Preservation Plan with Wells Fargo Bank, National Association,
as Rights Agent, dated as of October [·],
2009 (the “Plan”). Our Board of Directors (the “Board”) approved the Plan in an
effort to deter acquisitions of our common stock that would potentially limit
our ability to use our built in losses and any resulting net loss carryforwards
to reduce potential future federal income tax obligations.


 


Under the Plan, from and after the record date of October [·],
2009, each share of our common stock will carry with it one preferred share
purchase right (a “Right”), each share of the Company’s Mandatorily Convertible
Cumulative Participating Preferred Stock, Series A (“Series A
Preferred Stock”), will carry with it 50 Rights (subject to adjustment) and
each share of the Company’s Mandatorily Convertible Cumulative Participating
Preferred Stock, Series B (“Series B Preferred Stock”), will carry
with it 50 Rights (subject to adjustment), until the Distribution Date or
earlier expiration of the Rights, as described below. In general, the Rights
will work to impose a significant penalty upon any person or group which
acquires 4.9% or more of our outstanding common stock after October [·],
2009, without the approval of our Board. Stockholders who own 4.9% or more of
the outstanding common stock as of October [·],
2009, will not trigger the Rights so long as they do not (i) acquire
additional shares of common stock representing 0.2% or more of the shares of
common stock then outstanding or (ii) fall under 4.9% ownership of common
stock and then reacquire shares that in the aggregate equal 4.9% or more of the
common stock. The Board may, in its sole discretion, exempt any person or group
for purposes of the Plan if it determines the acquisition by such person or
group will not jeopardize tax benefits or is otherwise in the Company’s best
interests.


 


For those interested in the specific terms of the Plan, we provide the
following summary description. Please note, however, that this description is
only a summary, and is not complete, and should be read together with the
entire Plan, which has been filed with the Securities and Exchange Commission
as an exhibit to our Current Report on Form 8-K, dated October [·],
2009. A copy of the agreement is available free of charge from our Company.


 


The Rights. From the
record date of October [·],
2009, until the Distribution Date or earlier expiration of the Rights, the
Rights will trade with, and will be inseparable from, the common stock, the Series A
Preferred Stock and the Series B Preferred Stock, as applicable. New
Rights will also accompany any new shares of Common Stock, Series A
Preferred Stock or Series B Preferred Stock that we issue after October [·],
2009, until the Distribution Date or earlier expiration of the Rights.


 


Exercise Price. Each
Right will allow its holder to purchase from our Company one one-hundredth of a
share of Series C Junior Participating Preferred Stock, no par value, of
the 


 


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Company (“Series C Preferred Stock”) for $30.00, subject to
adjustment (the “Exercise Price”), once the Rights become exercisable. This
portion of a share of Series C Preferred Stock will give the stockholder
approximately the same dividend, voting, and liquidation rights as would one
share of common stock (subject to certain exceptions described in the Plan with
respect to Rights that immediately prior to the Distribution Date were
evidenced by a certificate that also evidenced Series B Preferred Stock).
Prior to exercise, the Right does not give its holder any dividend, voting, or
liquidation rights.


 


Exercisability. The
Rights will not be exercisable until 10 days after the public announcement that
a person or group has become an “Acquiring Person” by obtaining beneficial
ownership, after October [·],
2009, of 4.9% or more of our outstanding common stock (or if already the
beneficial owner of at least 4.9% of our outstanding common stock, by acquiring
additional shares of our common stock representing 0.2% or more of the shares
of common stock then outstanding), unless exempted by the Board.


 


We refer to the date when the Rights become exercisable as the
“Distribution Date.” Until that date or earlier expiration of the Rights, the
common stock certificates, Series A Preferred Stock certificates and Series B
Preferred Stock certificates will also evidence the Rights, and any transfer of
shares of common stock or Series A Preferred Stock or Series B
Preferred Stock will constitute a transfer of Rights. After that date, the
Rights will separate from the common stock, Series A Preferred Stock and Series B
Preferred Stock, and be evidenced by book-entry credits or by Rights
certificates that we will mail to all eligible holders of common stock, Series A
Preferred Stock and Series B Preferred Stock. Any Rights held by an
Acquiring Person are void and may not be exercised.


 


Consequences of a Person or Group Becoming an
Acquiring Person. If a person or group becomes an
Acquiring Person, all holders of Rights except the Acquiring Person may, for
payment of the Exercise Price, purchase shares of our common stock with a
market value of twice the Exercise Price, based on the market price of the
common stock as of the acquisition that resulted in such person or group
becoming an Acquiring Person (subject to certain exceptions described in the
Plan with respect to Rights that immediately prior to the Distribution Date
were evidenced by a certificate that also evidenced Series B Preferred
Stock).


 


Exchange. After a
person or group becomes an Acquiring Person, our Board may extinguish the
Rights by exchanging one share of common stock or an equivalent security for
each Right, other than Rights held by the Acquiring Person or an Affiliate or
an Associate of any Acquiring Person (subject to certain exceptions described
in the Plan with respect to Rights that immediately prior to the Distribution
Date were evidenced by a certificate that also evidenced Series B
Preferred Stock).


 


Series C Preferred Stock Provisions.


 


Each
one one-hundredth of a share of Series C Preferred Stock, if issued:


 


·                  will not be redeemable.


 


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·                  will entitle holders to dividends equal to the
dividends, if any, paid on one share of common stock.


 


·                  will entitle holders upon liquidation
either to receive $1 per share or an amount equal to the payment made on one
share of common stock, whichever is greater.


 


·                  will have the same voting power as one share of common
stock (subject to certain exceptions described in the Plan with respect to
Rights that immediately prior to the Distribution Date were evidenced by a
certificate that also evidenced Series B Preferred Stock).


 


·                  will entitle holders to a per share
payment equal to the payment made on one share of common stock, if shares of
our common stock are exchanged via merger, consolidation, or a similar
transaction.


 


The value of one one-hundredth interest in a share of Series C
Preferred Stock is expected to approximate the value of one share of
common stock.


 


Expiration. The
Rights will expire on the earliest of (i) October [·],
2012, (ii) the time at which the Rights are redeemed, (iii) the time
at which the Rights are exchanged, (iv) the repeal of Section 382 or
any successor statute, or any other change, if the Board determines that this
Plan is no longer necessary for the preservation of tax benefits, (v) October [·],
2010 if approval of the Plan by our stockholders has not been obtained prior to
such date, or (vi) a determination by the Board, prior to the time any
person or group becomes an Acquiring Person, that the Plan and the Rights are
no longer necessary for the preservation or existence of income tax benefits or
are no longer in the best interests of the Company and its stockholders.


 


Redemption. Our
Board may redeem the Rights for $.001 per Right at any time before any person
or group becomes an Acquiring Person. If our Board redeems any Rights, it must
redeem all of the Rights. Once the Rights are redeemed, the only right of the
holders of Rights will be to receive the redemption price of $.001 per Right.
The redemption price will be adjusted if we have a stock split or stock
dividends of our common stock.


 


Anti-Dilution Provisions.
Our Board may adjust the Exercise Price, the number of shares of Series C
Preferred Stock issuable and the number of outstanding Rights to prevent
dilution that may occur from a stock dividend, a stock split, or a
reclassification of the Series C Preferred Stock or common stock.


 


Amendments. The
terms of the Plan may be amended by our Board without the consent of the
holders of the Rights. After a person or group becomes an Acquiring Person and
does not become an exempt person prior to the Distribution Date, our Board may
not amend the agreement in a way that adversely affects holders of the Rights
(other than an Acquiring Person or an Affiliate or Associate of an Acquiring
Person).


 


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