Attached files
| file | filename |
|---|---|
| 10-K - ANNUAL REPORT - WEST COAST BANCORP /NEW/OR/ | westcoast_10k.htm |
| EX-32 - CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350 - WEST COAST BANCORP /NEW/OR/ | exhibit32.htm |
| EX-23 - CONSENT OF DELOITTE & TOUCHE LLP - WEST COAST BANCORP /NEW/OR/ | exhibit23.htm |
| EX-21 - SUBSIDIARIES OF THE COMPANY - WEST COAST BANCORP /NEW/OR/ | exhibit21.htm |
| EX-24 - POWER OF ATTORNEY - WEST COAST BANCORP /NEW/OR/ | exhibit24.htm |
| EX-3.2 - AMENDED AND RESTATED BYLAWS OF THE COMPANY - WEST COAST BANCORP /NEW/OR/ | exhibit3-2.htm |
| EX-31.2 - CERTIFICATION - WEST COAST BANCORP /NEW/OR/ | exhibit31-2.htm |
| EX-31.1 - CERTIFICATION - WEST COAST BANCORP /NEW/OR/ | exhibit31-1.htm |
Exhibit 3.1
RESTATED ARTICLES OF
INCORPORATION
OF
WEST COAST BANCORP
(including amendments through January 20, 2010)
OF
WEST COAST BANCORP
(including amendments through January 20, 2010)
ARTICLE I
NAME
The name of the corporation is WEST
COAST BANCORP.
ARTICLE
II
CAPITALIZATION
The corporation is authorized to issue 260,000,000 shares of stock
divided into two classes as follows:
A. Common Stock. 250,000,000 shares of common stock which
shall have unlimited voting rights, subject only to such voting rights as may be
specified in respect of preferred stock, and shall have the right to receive the
net assets of the corporation upon dissolution, subject only to prior payment of
such amount of the net assets of the corporation as may be specified in respect
of shares of preferred stock.
B. Preferred Stock. 10,000,000 shares of preferred stock
issuable from time to time in one or more series as permitted by law and the
provisions of the articles of incorporation as may be determined from time to
time by the board of directors (or a committee of the board of directors or an
officer duly authorized to take such action) and stated in a resolution or
resolutions authorizing the issuance of shares of such series prior to the
issuance of any such shares; provided that such issuance shall be subject to the
affirmative vote of the holders of a majority of the shares present and entitled
to vote at a meeting at which such action is submitted for approval if the board
of directors has received notice of or is otherwise aware of any transaction or
other event pursuant to which (i) any "person" (as such term is used in Sections
13(d) and 14(d) or any successor provisions of the Securities Exchange Act of
1934 and the Securities and Exchange Commission's rules and regulations pursuant
thereto (collectively, the "Exchange Act")), other than the corporation, a
subsidiary of the corporation, an employee benefit or similar plan sponsored by
the corporation, or a person permitted to file reports of beneficial ownership
of the corporation's common stock on Schedule 13G under the Exchange Act, is or
proposes to become the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the corporation
representing 10 percent or more of the combined voting power of the
corporation's then outstanding securities or (ii) the corporation or any of its
subsidiaries representing 50 percent or more of its assets would be a party to a
merger or consolidation in which less than 50 percent of the outstanding voting
securities of the surviving or resulting corporation or such surviving or
resulting corporation's parent would be owned in the aggregate by persons who
were shareholders of the corporation immediately prior to such merger or
consolidation:
1. Issuance in Series. The board of directors (or a committee of
the board of directors or an officer duly authorized to take such action) shall
have the authority to fix and determine, subject to the provisions hereof, the
rights and preferences of the shares of any series so established, including,
without limitation, the rate of dividend, whether the dividend shall be
cumulative, whether shares may be redeemed and, if so, the redemption price and
the terms and conditions of the redemption, the amount payable upon shares in
the event of voluntary or involuntary liquidation, sinking fund provisions, if
any, for the redemption or purchase of shares, the terms and conditions, if any,
on which shares may be converted, and voting rights, if any.
2. Dividends. The holders of shares of preferred stock of
a series shall be entitled to receive dividends, out of funds legally available
therefor, at the rate and at the time or times as may be provided in respect of
a particular series of preferred stock. If such dividends shall be cumulative,
and if dividends shall not have been paid, then the deficiency shall be fully
paid or the dividends declared and set apart for payment before any dividends on
the common stock shall be paid or declared and set apart for payment. Unless
otherwise provided in respect of a particular series of preferred stock, the
holders of the preferred stock shall not be entitled to receive any dividends
thereon other than the dividends referred to in this section.
3. Redemption. The preferred stock of a series may be
redeemed in such amount or amounts, and at such time or times, if any, as may be
provided in respect of a particular series of preferred stock. In any event,
preferred stock may be repurchased by the corporation to the extent legally
permissible.
4. Liquidation. In the event of any liquidation,
dissolution, or winding up of the affairs of the corporation, whether voluntary
or involuntary, then, before any distribution shall be made to the holders of
the common stock, the holders of the preferred stock of a series shall be
entitled to be paid the preferential amount or amounts as may be provided in
respect of a particular series of preferred stock per share and dividends
accrued thereon to the date of such payment. The holders of the preferred stock
shall not be entitled to receive any distributive amounts upon the liquidation,
dissolution, or winding up of the affairs of the corporation other than the
distributive amounts referred to in this section, unless otherwise provided in
respect of a particular series of preferred stock.
5. Conversion. Shares of a particular series of preferred
stock may be convertible or converted into common stock or other securities of
the corporation on such terms and conditions as may be provided in respect of
that series.
6. Voting Rights. Holders of preferred stock of a series shall
have such voting rights not in excess of one vote per share as may be provided
in respect of a particular series of preferred stock.
C. Preemptive Rights. Shareholders shall have no preemptive right
to acquire shares or other securities of the corporation which would otherwise
be available to the shareholders pursuant to ORS 60.174.
D. Cumulative Rights. Shareholders do not have cumulative voting
rights with respect to the election of directors of the
corporation.
ARTICLE
III
BOARD OF DIRECTORS
A. Number of Directors. The board of directors shall consist of not
fewer than eight (8) or more than twenty (20) directors. The exact number within
such minimum and maximum limits shall be fixed and determined by resolutions
approved by at least a 75 percent vote of the total number of directors then in
office. The board of directors may fill vacancies on the board of directors,
whether caused by resignation, death or otherwise; provided, that at no time
shall the total number exceed twenty (20).
B. Terms of Directors. Beginning with the directors elected at the
corporation's 2003 annual meeting of shareholders, each director shall serve for
a term ending on the date of the next annual meeting of shareholders and until
his or her successor is elected and qualified or until his or her earlier
resignation, removal from office, or death.
C. Removal from Office. No director may be removed from office
without cause except by a vote of 66 2/3 percent of the shares then entitled to
vote at an election of directors. Except as otherwise provided by law, cause for
removal shall exist only if the board of directors has reasonable grounds to
believe that the corporation has suffered or will suffer substantial injury as a
result of the gross negligence, willful misconduct, or dishonesty of the
director whose removal is proposed.
ARTICLE IV
DIRECTOR LIABILITY
Directors of the corporation shall not be liable to the corporation or
its shareholders for monetary damages for conduct as directors except to the
extent that the Oregon Business Corporation Act, as it now exists or may
hereafter be amended, prohibits elimination or limitation of director liability.
No repeal or amendment of this Article V or of the Oregon Business Corporation
Act shall adversely affect any right or protection of a director for actions or
omissions prior to the repeal or amendment.
ARTICLE V
INDEMNIFICATION
The corporation shall indemnify each of its directors to the fullest
extent permissible under the Oregon Business Corporation Act, as the same exists
or may hereafter be amended, against all expense, liability, and loss
(including, without limitation, attorneys' fees) incurred or suffered by such
person by reason of or arising from the fact that such person is or was a
director of the corporation, or is or was serving at the request of the
corporation as a director, officer, partner, trustee, employee, or agent of
another foreign or domestic corporation, partnership, joint venture, trust,
employee benefit plan, or other enterprise, and such indemnification shall
continue as to a person who has ceased to be a director, officer, partner,
trustee, employee, or agent and shall inure to the benefit of his or her heirs,
executors, and administrators. The corporation may, in its bylaws or as
otherwise authorized by its board of directors, provide indemnification to
officers, employees, and agents of the corporation to the extent permitted by
law. The indemnification provided in this Article VI shall not be exclusive of
any other rights to which any person may be entitled under any statute, bylaw,
agreement, resolution of shareholders or directors, contract, or otherwise.
ARTICLE VI
SHAREHOLDER APPROVAL
OF CERTAIN TRANSACTIONS
A. Except as set forth in Section B of this Article VI:
1. any transaction or series of related transactions to which the
corporation or any of its subsidiaries is a party, the consummation of which
would result in a Change of Control of the corporation (as hereinafter defined);
or
2. any sale, lease, exchange, or other disposition of all or substantially
all of the property, with or without goodwill, of the corporation and its
subsidiaries to any other corporation, person, trust, partnership, limited
liability company, or other entity;
shall require the
affirmative vote of the holders of shares representing at least 66 1/3 percent
of all classes of capital stock of the corporation then entitled to vote at an
election of directors, considered for the purposes of this Article VI as one
class.
For purposes of this Article VI, a
"Change in Control" of the corporation would occur if:
(a) any "person" (as such term is used in Sections 13(d) and 14(d) or any
successor provisions of the Securities Exchange Act of 1934 and the Securities
and Exchange Commission's rules and regulations pursuant thereto, as in effect
from time to time (collectively, the Exchange Act")), other than the
corporation, becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the corporation
representing 30 percent or more of the combined voting power of the
corporation's then outstanding securities; or
(b) the corporation is merged or consolidated with another corporation and as
a result of such merger or consolidation less than 50 percent of the outstanding
voting securities of the surviving or resulting corporation would be owned in
the aggregate by persons or entities who were shareholders of the corporation
immediately prior to such merger or consolidation, other than shareholders who
are "affiliates" (as defined in Rule 12b-2 under the Exchange Act) of any party
to such merger or consolidation; or
(c) the transaction is of the type that would be required to be reported in
response to Item 6(e) of Schedule 14A of Regulation 14A under the Exchange
Act.
Also
for purposes of this Article VI, the term "substantially all of the property,
with or without goodwill, of the corporation and its subsidiaries" shall mean
those properties and assets involved in any single transaction or series of
related transactions having an aggregate fair market value of more than a
majority of the total consolidated assets of the corporation and its
subsidiaries.
B. The provisions of this Article VI shall not
apply to any transaction or series of transactions described in Section A of
this Article VI if, prior to the consummation of such transaction or
transactions, the board of directors of the corporation shall have approved the
transaction or transactions by the affirmative vote of more than 75 percent of
the directors. The board of directors of this corporation shall have the power
and duty to determine for the purposes of this Article VI, on the basis of
information known to the corporation, whether any transaction or series of
transactions is subject to the voting requirements of this Article VI. Any such
determination made in good faith shall be conclusive and binding for all
purposes of this Article VI.
C. No amendment to the articles of incorporation
of this corporation shall amend, alter, change, or repeal any of the provisions
of this Article VI unless the amendment effecting such amendment, alteration,
change, or repeal (i) shall be approved by more than 75 percent of the
directors, or (ii) shall receive the affirmative vote of 66 2/3 percent of all
classes of stock of the corporation entitled to vote at an election of
directors, considered for the purposes of this Article VI as one class.
D. Nothing contained in this Article VI shall be
construed to relieve any beneficial owner of shares of the corporation from any
fiduciary obligation imposed by law.
ARTICLE VII
CONSIDERATION OF
NON-MONETARY FACTORS
The board of directors of the corporation, when evaluating any offer of
another party to (a) make a tender or exchange for any equity security of the
corporation, (b) merge or consolidate the corporation with another corporation
or association, or (c) purchase or otherwise acquire all or substantially all of
the properties and assets of the corporation, may, in connection with the
exercise of its judgment in determining what is in the best interests of the
corporation and its stockholders, give due consideration to all relevant
factors, including without limitation the social and economic effects on the
employees, customers, suppliers, and other constituents of the corporation and
its subsidiaries and on the communities in which the corporation and its
subsidiaries operate or are located.
As amended by the Shareholders on
April 24, 1998, April 22, 2003, and January 20, 2010.
TO
BE EFFECTIVE: OCTOBER 23, 2009
ARTICLES OF AMENDMENT
TO DESIGNATE THE TERMS OF
MANDATORILY CONVERTIBLE
CUMULATIVE
PARTICIPATING PREFERRED STOCK, SERIES
A
OF
WEST COAST BANCORP
Pursuant to Section
60.131 of the Oregon
Business Corporation Act
Business Corporation Act
WEST COAST BANCORP, a corporation organized and existing under the
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 Articles of
Incorporation and the Bylaws of the Company and applicable law, adopted the
following Articles of Amendment on October 22, 2009 with an effective date of
October 23, 2009, creating a series of Preferred Stock of the Company designated
as “Mandatorily Convertible Cumulative Participating Preferred Stock, Series A”.
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 Number of
Shares. There is hereby created
out of the authorized and unissued shares of preferred stock of the Company a
series of preferred stock designated as the “Mandatorily Convertible Cumulative
Participating Preferred Stock, Series A” (the “Series A
Preferred Stock”). The number of shares constituting such series shall be
2,000,000. The Series A Preferred Stock shall have no par
value.
Section 2. Ranking. The Series A
Preferred Stock will, with respect to dividend rights and rights on liquidation,
winding-up and dissolution, rank (i) on a parity with Series B Preferred Stock
and each other class or series of equity securities of the Company, if any, the
terms of which do not expressly provide that such class or series will rank
senior or junior to the Series A Preferred Stock as to dividend rights and
rights on liquidation, winding-up and dissolution of the Company (collectively
referred to as “Parity Securities”), and (ii)
senior to the Company’s common stock, no par value (the “Common Stock”) and each other class or
series of capital stock outstanding or established after the Effective Date by the Company the terms of which
expressly provide that it ranks junior to the Series A Preferred Stock as to
dividend rights and/or as to rights on liquidation, winding-up and dissolution
of the Company (collectively referred to as “Junior Securities”). The Company has the right to authorize
and/or issue additional shares or classes or series of Junior Securities or
Parity Securities without the consent of the Holders; provided,
however, that for as long as the Approvals Date has
not occurred and the Series A Preferred Stock remains outstanding, no preferred
stock of the Company that would rank senior to the Series A Preferred Stock or
the Series B Preferred Stock may be issued without, in each case, the express
approval of the Holders of at least three-quarters of the issued and outstanding
Series A Preferred Stock and Series B Preferred Stock, voting as a single
class.
Section 3.
Definitions. Unless the context or use indicates another
meaning or intent, the following terms shall have the following meanings,
whether used in the singular or the plural:
(a)
“382 Rights Plan” means a stockholder rights plan designed to
preserve the utilization of tax benefits and assets and the associated
declaration, issuance and exercise of related securities (including rights and
shares of a new series of junior participating preferred stock).
(b)
“Affiliate” means, with respect to any Person, any
Person directly or indirectly controlling, controlled by or under common control
with, such other person. For purposes of this definition, “control” (including,
with correlative meanings, the terms “controlled by” and “under common control
with”) when used with respect to any Person, means the possession, directly or
indirectly, of the power to cause the direction of management or policies of
such person, whether through the ownership of voting securities, by contract or
otherwise.
(c)
“Applicable Conversion Price” means the Conversion Price in effect at any
given time.
(d)
“Approvals Date” means, with respect to the shares of Series
A Preferred Stock of any Holder, the day that is the fifth Business Day after
the day on which the Company shall have obtained stockholder approval in the
manner required therefor by NASDAQ’s rules, regulations and interpretations and
the Oregon Business Corporation Act for all of the Stockholder Proposals.
(e)
“Articles of Amendment” means this Articles of Amendment to
designate the terms of Mandatorily Convertible Cumulative Participating
Preferred Stock, Series A, of West Coast Bancorp, dated October 23, 2009.
(f)
“Articles of Incorporation” means the Restated Articles of Incorporation
of the Company, as may be amended from time to time.
(g) “Base Price” means $2.00.
(h) “Base Value” means the product of (x) the Base Price and
(y) 50.
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(i) “Board of Directors” means the board of directors of the Company.
(j)
“Business Day” means any day other than a Saturday, Sunday
or any other day on which banks in the State of Oregon are generally required or
authorized by law to be closed.
(k)
“Bylaws” means the Bylaws of the Company as may be
amended from time to time.
(l)
“Class C Warrant” means a Class C warrant of the Company to
purchase shares of Series B Preferred Stock.
(m)
“Closing Price” of the Common Stock (or other relevant
capital stock or equity interest) on any date of determination means the closing
sale price or, if no closing sale price is reported, the last reported sale
price of the shares of the Common Stock (or other relevant capital stock or
equity interest) on the NASDAQ Stock Market on such date. If the Common Stock
(or other relevant capital stock or equity interest) is not traded on the NASDAQ
Stock Market on any date of determination, the Closing Price of the Common Stock
(or other relevant capital stock or equity interest) on such date of
determination means the closing sale price as reported in the composite
transactions for the principal U.S. national or regional securities exchange on
which the Common Stock (or other relevant capital stock or equity interest) is
so listed or quoted, or, if no closing sale price is reported, the last reported
sale price on the principal U.S. national or regional securities exchange on
which the Common Stock (or other relevant capital stock or equity interest) is
so listed or quoted, or if the Common Stock (or other relevant capital stock or
equity interest) is not so listed or quoted on a U.S. national or regional
securities exchange, the last quoted bid price for the Common Stock (or other
relevant capital stock or equity interest) in the over-the-counter market as
reported by Pink Sheets LLC or similar organization, or, if that bid price is
not available, the market price of the Common Stock (or other relevant capital
stock or equity interest) on that date as determined by a nationally recognized
independent investment banking firm retained by the Company for this purpose.
For purposes of this Articles of Amendment,
all references herein to the “Closing Price” and “last reported sale
price” of the Common Stock
(or other relevant capital stock or equity interest) on the NASDAQ Stock Market
shall be such closing sale price and last reported sale price as reflected on
the website of the NASDAQ Stock Market (http://www.nasdaq.com) and as reported
by Bloomberg Professional Service; provided that in
the event that there is a discrepancy between the closing sale price or last
reported sale price as reflected on the website of the NASDAQ Stock Market and
as reported by Bloomberg Professional Service, the closing sale price and last
reported sale price on the website of the NASDAQ Stock Market shall govern. If a
Reorganization Event has occurred and (1) the Exchange Property consists only of
shares of common stock, the “Closing Price” shall be based on the closing sale
price per share of such common stock; (2) the Exchange Property consists only of
cash, the “Closing Price” shall be the cash amount paid per share; and (3) the
Exchange Property consists of securities, cash and/or other property, the
“Closing Price” shall be based on the sum, as applicable, of (x) the closing
sale price of such common stock, (y) the cash amount paid per share and (z) the
value (as determined by the Board of Directors, acting in good faith, from time
to time) of any other securities or property paid to the holders of the Common
Stock in connection with the Reorganization Event.
-3-
(n) “Common Stock” has the meaning set forth in Section 2.
(o) “Company” means West Coast Bancorp, an Oregon
corporation.
(p)
“Conversion Date” means a Mandatory Conversion Date or a
Reorganization Conversion Date.
(q)
“Conversion Price” means for each share of Series A Preferred
Stock, the Base Price, subject to adjustment as set forth herein.
(r)
“Current Market Price” means, on any date, the average of the daily
Closing Price per share of the Common Stock or other securities on each of the
ten (10) consecutive Trading Days preceding the earlier of the day before the
date in question and the day before the Ex-Date with respect to the issuance or
distribution giving rise to an adjustment to the Conversion Price pursuant to
Section 10.
(s)
“Dividend Payment Date” has the meaning set forth in Section 4(a).
(t) “Dividend Period” has the meaning set forth in Section 4(a).
(u)
“Effective Date” means the date on which shares of the Series
A Preferred Stock are first issued.
(v) “Exchange Property” has the meaning set forth in Section 11(a).
(w)
“Ex-Date”, when used with respect to any issuance or
distribution, means the first date on which the Common Stock or other securities
trade without the right to receive the issuance or distribution giving rise to
an adjustment to the Conversion Price pursuant to Section 10.
(x) “Holder” means the Person in whose name the shares of
the Series A Preferred Stock are registered, which may be treated by the Company
as the absolute owner of the shares of Series A Preferred Stock for the purpose
of making payment and settling conversions and for all other purposes.
(y) “Junior Securities” has the meaning set forth in Section 2.
(z)
“Liquidation Preference” means, as to the Series A Preferred Stock,
$100 per share (as adjusted for any split, subdivision, combination,
consolidation, recapitalization or similar event with respect to the Series A
Preferred Stock).
-4-
(aa)
“Mandatory Conversion Date” means, with respect to shares of Series A
Preferred Stock of any Holder, the Approvals Date; provided, however,
that if a Mandatory Conversion Date would otherwise occur on or after an Ex-Date
for an issuance or distribution that results in an adjustment of the Conversion
Price pursuant to Section 10 and on or before the Record Date for such issuance
or distribution, such Mandatory Conversion Date shall instead occur on the first
calendar day after the Record Date for such issuance or distribution.
(bb)
“Notice of Mandatory
Conversion” has the
meaning set forth in Section 9(a).
(cc)
“Ownership Limit” means at the time of determination, 9.9% of
any class of Voting Securities of the Company outstanding at such time. Any
calculation of a Holder’s percentage ownership of the outstanding Voting
Securities of the Company for purposes of this definition shall be made in
accordance with the relevant provisions of Regulation Y of the Board of
Governors of the Federal Reserve System.
(dd) “Parity Securities” has the meaning set forth in Section 2.
(ee)
“Permitted Rights Offering” shall mean an offering of up to $10 million
of aggregate offering price of Common Stock pursuant to subscription rights
distributed pro rata to the then existing holders of record of Common Stock at a
price per share of Common Stock not less than $2.00, and the associated
declaration, issuance and exercise of the subscription rights with respect to
such offering and shares of Common Stock issuable in connection with the
exercise of any such rights; provided that the
Company will use its best efforts to ensure that such rights offering, including
exercise of such right, is completed as soon as practicable and in no event
later than March 1, 2010.
(ff)
“Person” has the meaning given to it in Section
3(a)(9) of the Exchange Act and as used in Sections 13(d)(3) and 14(d)(2) of the
Exchange Act.
(gg)
“Preferred Stock” means any and all series of preferred stock
of the Company, including the Series A Preferred Stock.
(hh) “Record Date” has the meaning set forth in Section 4(a).
(ii)
“Regulatory Approvals” means, as to any Holder, to the extent
applicable and required to permit such Holder to convert such Holder’s shares of
Series A Preferred Stock into Common Stock and to own such Common Stock without
such Holder being in violation of applicable law, rule or regulation, the
receipt or making of approvals and authorizations of, filings and registrations
with, notifications to, or determinations by any U.S. federal, state or foreign
governmental authority or self-regulatory organization, including the expiration
or termination of any applicable waiting period under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976.
(jj) “Reorganization Conversion
Date” means, with respect
to the shares of Series A Preferred Stock of any Holder, the date of the
consummation of the Reorganization Event or, if later, the first date on which
all Regulatory Approvals with respect to the conversion of such shares shall
have been obtained or made; provided,
however, that if a Reorganization Conversion Date
would otherwise occur on or after an Ex-Date for an issuance or distribution
that results in an adjustment of the Conversion Price pursuant to Section 10 and
on or before the Record Date for such issuance or distribution, such
Reorganization Conversion Date shall instead occur on the first calendar day
after the Record Date for such issuance or distribution.
-5-
(kk) “Reorganization Event” has the meaning set forth in Section 11(a).
(ll) “Series A Preferred Stock” has the meaning set forth in Section 1.
(mm) “Series B Preferred Stock” means the Mandatorily Convertible Cumulative
Participating Preferred Stock, Series B, of the Company.
(nn) “Stockholder Proposals” means the stockholder proposals to (i)
approve the issuance of Common Stock upon conversion of the Series A Preferred
Stock and Series B Preferred Stock (including the Series B Preferred Stock
issuable upon the exercise of Class C Warrants) for purposes of Rule 5635 of the
NASDAQ Listing Rules and (ii) amend the Articles of Incorporation to increase
the number of authorized shares of Common Stock to 250,000,000.
(oo) “Trading Day” means a day on which the shares of Common
Stock:
(i) are not suspended from trading on any national or regional securities
exchange or association or over-the-counter market at the close of business; and
(ii) have traded at least once on the national or regional securities exchange
or association or over-the-counter market that is the primary market for the
trading of the Common Stock.
(pp) “Voting Securities” means, at any time, shares of any class of
capital stock of the Company that are then entitled to vote generally in the
election of directors.
Section 4. Dividends. (a) From
and after the Effective Date and prior to March 1, 2010, Holders shall be
entitled to receive, when, as and if declared by the Board of Directors, out of
the funds legally available therefor, dividends in the amount determined as set
forth in Section 4(b)(i), and no more. In the event that the Stockholder
Proposals are not approved by the holders of Common Stock in the manner required
therefor by NASDAQ’s rules, regulations and interpretations and the Oregon
Business Corporation Act prior to March 1, 2010, from and after March 1, 2010,
Holders shall be entitled to receive, when, as and if declared by the Board of
Directors, out of the funds legally available therefor, cumulative cash
dividends in the amount determined as set forth in Section 4(b)(ii), and no
more; provided, however, from and
after such date as the Stockholder Proposals are approved in the manner required
therefor by NASDAQ’s rules, regulations and interpretations and the Oregon
Business Corporation Act, Holders shall be entitled to receive, when, as and if
declared by the Board of Directors, out of the funds legally available therefor,
dividends in the amount determined as set forth in Section 4(b)(i), and no more.
Except as otherwise provided herein, such dividends shall be payable quarterly
in arrears (as provided below in this Section 4(a)), but only when, as and if
declared by the Board of Directors, on March 15, June 15, September 15 and
December 15 (each, a “Dividend Payment Date”), commencing on
December 15, 2009; provided, that if any such
Dividend Payment Date would otherwise occur on a day that is not a Business Day,
such Dividend Payment Date shall instead be (and any dividend payable on Series
A Preferred Stock on such Dividend Payment Date shall instead be payable on) the
immediately succeeding Business Day, unless such immediately succeeding Business
Day falls in the next calendar month, in which case such Dividend Payment Date
shall instead be (and any such dividend shall instead be payable on) the
immediately preceding Business Day. Dividends on Series A Preferred Stock shall
accrue at any time that dividends on the Series A Preferred Stock are cumulative
(whether or not in any dividend period or periods (each, a “Dividend Period”) there shall be funds
of the Company legally available for the payment of such dividends and whether
or not such dividends are authorized or declared) and accrued dividends shall
accumulate to the extent not paid on the Dividend Payment Date first following
the Dividend Period for which they accrue. As used herein, the term “accrued”
with respect to dividends includes both accrued and accumulated
dividends.
-6-
Dividends that are payable on Series A
Preferred Stock on any Dividend Payment Date will be payable to holders of
record of Series A Preferred Stock as they appear on the stock register of the
Company on the applicable record date, which shall be the 15th calendar day
before such Dividend Payment Date or such other record date fixed by the Board
of Directors or a duly authorized committee of the Board of Directors that is
not more than 60 nor less than 10 days prior to such Dividend Payment Date
(each, a “Record Date”). Any such day that is a Record Date shall
be a Record Date whether or not such day is a Business Day.
Each Dividend Period shall commence on and
include a Dividend Payment Date (other than the initial Dividend Period, which
shall commence on and include the date of original issue of the Series A
Preferred Stock, provided that, for any share
of Series A Preferred Stock issued after such original issue date, the initial
Dividend Period for such shares may commence on and include such other date as
the Board of Directors or a duly authorized committee of the Board of Directors
shall determine and publicly disclose) and shall end on and include the calendar
day preceding the next Dividend Payment Date. Dividends payable on the Series A
Preferred Stock in respect of any Dividend Period shall be computed by the
Company on the basis of a 360-day year and the actual number of days elapsed in
such Dividend Period, except that dividends for the initial period will be
calculated from the original issue date. Dividends payable in respect of a
Dividend Period shall be payable in arrears (i.e., on the first Dividend Payment
Date after such Dividend Period).
(b) (i) Subject to Section 4(a), if the Board
of Directors declares and pays a dividend or other distribution in respect of
Common Stock (other than with respect to a Permitted Rights Offering or 382
Rights Plan; provided
that Holders of Series A Preferred Stock participate in such distribution under
such 382 Rights Plan as if their shares of Series A Preferred Stock were
converted into shares of Common Stock pursuant to Section 8 hereof), then the
Board of Directors shall declare and pay to the Holders of the Series A
Preferred Stock, on the same dates on which such dividend or other distribution
is declared and paid on the Common Stock, a dividend or other distribution in an
amount per share of Series A Preferred Stock equal to the product of (x) the per
share dividend or other distribution declared and paid in respect of each share
of Common Stock and (y) the number of shares of Common Stock into which such
shares of Series A Preferred Stock is convertible as of the Record Date for such
dividend or distribution.
-7-
(ii)
Subject to Section 4(a), the
dividend rate, and the rate at which dividends shall accrue, on each share of
Series A Preferred Stock, for each Dividend Period, shall be at an annual rate
equal to 15%, calculated with respect to the Base Value of a share of Series A
Preferred Stock.
(c)
Dividends in arrears on the
Series A Preferred Stock in respect of a Dividend Period not declared for
payment or to the extent not paid on the first Dividend Payment Date following
the Dividend Period for which they accrue may be declared by the Board of
Directors and paid on any date fixed by the Board of Directors, whether or not a
Dividend Payment Date, to the holders of record of Series A Preferred Stock as
they appear on the stock register of the Company on a record date selected by
the Board of Directors, which shall (a) not precede the date the Board of
Directors declares the dividend payable and (b) not be more than 60 days prior
to the date the dividend is paid.
(d)
At any time prior to the
Approvals Date, so long as any share of Series A Preferred Stock remains
outstanding, (1) no dividend or interest shall be declared and paid or set aside
for payment and no distribution shall be declared and made or set aside for
payment on any Junior Securities (other than a dividend payable solely in shares
of Junior Securities) or trust preferred securities and (2) no shares of Junior
Securities or trust preferred securities shall be purchased, redeemed or
otherwise acquired by the Company, directly or indirectly. The foregoing
limitations shall not apply (i) with respect to a Permitted Rights Offering;
(ii) to redemptions, purchases or other acquisitions of shares of Junior
Securities in connection with any benefit plan or other similar arrangement with
or for the benefit of any one or more employees, officers, directors or
consultants or in connection with a dividend reinvestment or stockholder stock
purchase plan; (iii) to any declaration of a dividend in connection with any
stockholders’ rights plan, or the issuance of rights, stock or other property
under any stockholders’ rights plan, or the redemption or repurchase of rights
pursuant thereto; and (iv) to conversions into or exchanges for other Junior
Securities and cash solely in lieu of fractional shares of the Junior
Securities.
(e)
So long as any shares of Series A
Preferred Stock remain outstanding, no dividends shall be declared or paid or
set aside for payment on any Parity Securities for any period (other than with
respect to a Permitted Rights Offering or 382 Rights Plan) unless full dividends
on all outstanding shares of Series A Preferred Stock for the then-current
dividend period have been paid in full or declared and a sum sufficient for the
payment thereof set aside for all outstanding shares of Series A Preferred Stock. To the extent the Company
declares dividends on the Series A Preferred Stock and on any Parity Securities
but does not make full payment of such declared dividends, the Company shall
allocate the dividend payments on a pro rata basis among the holders of the
shares of Series A Preferred Stock and the holders of any Parity Securities then
outstanding. For purposes of calculating the pro rata allocation of partial
dividend payments, the Company shall allocate those payments so that the
respective amounts of those payments bear the same ratio to each other as all
accrued and unpaid dividends per share on the Series A Preferred Stock and all
Parity Securities bear to each other.
-8-
(f)
At any time that dividends on the
Series A Preferred Stock are not cumulative, and if a Conversion Date with
respect to any share of Series A Preferred Stock is prior to the record date for
the payment of any dividend on the Common Stock, the Holder of such share of
Series A Preferred Stock will not have the right to receive any corresponding
dividends on the Series A Preferred Stock. At any time that dividends on the
Series A Preferred Stock are not cumulative, and if the Conversion Date with
respect to any share of Series A Preferred Stock is after the Record Date for
any declared dividend and prior to the payment date for that dividend, the
Holder thereof shall receive that dividend on the relevant payment date if such
Holder was the Holder of record on the Record Date for that dividend. Any
accrued and unpaid cumulative dividends on the Series A Preferred Stock shall be
payable in cash on the Conversion Date.
Section 5.
Liquidation. (a) In the event the
Company voluntarily or involuntarily liquidates, dissolves or winds up, the
Holders at the time shall be entitled to receive, for each share of the Series A
Preferred Stock, the sum of (i) liquidating distributions in an amount equal to
the Liquidation Preference, plus any accrued but unpaid dividends thereon to and
including the date of such liquidation, out of assets legally available for
distribution to the Company’s stockholders, before any distribution of assets is
made to the holders of the Common Stock or any other Junior Securities and (ii)
after all distributions have been made to Holders pursuant to clause (i) of this
sentence, liquidating distributions, as determined by the Company (or the
trustee or other Person or Persons administering its liquidation, dissolution or
winding-up in accordance with applicable law) as of a date that is at least ten
(10) Business Days before the first liquidating distribution is made on Series A
Preferred Stock, that would be made on the number of shares of Common Stock
equal to the Base Value divided by the Applicable Conversion Price as if all of
the outstanding shares of Series A Preferred Stock and Series B Preferred Stock
had been converted into Common Stock on such date of determination, out of
assets legally available for distribution to the Company’s stockholders,
simultaneous with any distribution of assets made to the holders of the Common
Stock. The Company shall notify each Holder of the amount it has calculated
pursuant to this Section 5 by first-class mail, postage prepaid, addressed to
the Holders at their respective last addresses appearing on the books of the
Company. Such mailing shall be made not later than five Business Days before the
first liquidating distribution is made on shares of Series A Preferred Stock.
-9-
(b)
In the event the assets of the
Company available for distribution to stockholders upon any liquidation,
dissolution or winding-up of the affairs of the Company, whether voluntary or
involuntary, shall be insufficient to pay in full the amounts payable with
respect to all outstanding shares of the Series A Preferred Stock and the
corresponding amounts payable on any Parity Securities, Holders and the holders
of such Parity Securities shall share ratably in any distribution of assets of
the Company in proportion to the full respective liquidating distributions to
which they would otherwise be respectively entitled.
(c)
The Company’s consolidation or
merger with or into any other entity, the consolidation or merger of any other
entity with or into the Company, or the sale of all or substantially all of the
Company’s property or business will not constitute its liquidation, dissolution
or winding-up.
Section 6.
Maturity. The Series A Preferred Stock shall be
perpetual unless converted in accordance with this Articles of Amendment.
Section 7.
Redemptions.
(a) Redemption. The
shares of Series A Preferred Stock are not redeemable by the Company.
(b) No Sinking Fund.
The Series A Preferred Stock will not be subject to any mandatory redemption,
sinking fund or other similar provisions.
Section 8.
Conversion.
(a)
Effective as of the close of
business on the Mandatory Conversion Date with respect to the shares of Series A
Preferred Stock of a Holder, such Holder’s shares of Series A Preferred Stock
shall automatically convert into shares of Common Stock as set forth below. The
number of shares of Common Stock into which a share of Series A Preferred Stock
shall be convertible shall be determined by dividing the Base Value by the
Applicable Conversion Price (subject to the conversion procedures of Section 9
hereof), provided that cash will be paid in lieu of fractional
shares in accordance with Section 13 hereof.
(b)
Notwithstanding anything herein
to the contrary, in no event shall the Holder be entitled to receive shares of
Common Stock upon any conversion of Series A Preferred Stock pursuant to this
Section 8 or Section 11 to the extent (but only to the extent) that at such time
(1) the Holder does not have any required Regulatory Approvals or (2) such
receipt would cause the Holder to own, or be deemed for applicable bank
regulatory purposes to own, Voting Securities of the Company in excess of the
Ownership Limit. If any delivery of shares of Common Stock owed to a Holder upon
conversion of Series A Preferred Stock is not made, in whole or in part, as a
result of the foregoing limitations, the Company’s obligation to make such
delivery shall not be extinguished and the Company shall, at the option of the
Holder, deliver such shares as promptly as practicable after such converting
Holder gives notice to the Company that the requirements of this Section 8(b)
are met.
-10-
Section 9.
Conversion
Procedures.
(a)
Each Holder shall, promptly upon
receipt of each required Regulatory Approval applicable to such Holder, provide
written notice to the Company of such receipt. Upon occurrence of the Mandatory
Conversion Date with respect to shares of any Holder, the Company shall provide
notice of such conversion to such Holder (such notice a “Notice of Mandatory
Conversion”). In addition
to any information required by applicable law or regulation, the Notice of
Mandatory Conversion with respect to such Holder shall state, as appropriate:
(i) the
Mandatory Conversion Date applicable to such Holder;
(ii)
the number of shares of Common
Stock to be issued upon conversion of each share of Series A Preferred Stock
held of record by such Holder and subject to such mandatory conversion; and
(iii)
the place or places where
certificates for shares of Series A Preferred Stock held of record by such
Holder are to be surrendered for issuance of certificates representing shares of
Common Stock.
(b)
In the event that such Holder
fails to surrender the required certificates for shares of Series A Preferred
Stock held of record by such Holder within 30 days after delivery of the
Mandatory Conversion Date, the Company shall, by written notice to such Holder,
indicate which shares have been converted pursuant to Section 8.
(c)
Effective immediately prior to
the close of business on any Conversion Date with respect to any share of Series
A Preferred Stock, dividends shall no longer be declared on any such converted
share of Series A Preferred Stock and such share of Series A Preferred Stock
shall cease to be outstanding, in each case, subject to the right of the Holder
to receive any accrued and unpaid or declared and unpaid dividends on such share
to the extent provided in Section 4(f) and any other payments to which such
Holder is otherwise entitled pursuant to Section 8, Section 11 or Section 13
hereof, as applicable.
(d)
No allowance or adjustment,
except pursuant to Section 10, shall be made in respect of dividends payable to
holders of the Common Stock of record as of any date prior to the close of
business on any Conversion Date with respect to any share of Series A Preferred
Stock. Prior to the close of business on the Conversion Date with respect to any
share of Series A Preferred Stock, shares of Common Stock issuable upon
conversion thereof, or other securities issuable upon conversion of, such share
of Series A Preferred Stock shall not be deemed outstanding for any purpose, and
the Holder thereof shall have no rights with respect to the Common Stock or
other securities issuable upon conversion (including voting rights, rights to
respond to tender offers for the Common Stock or other securities issuable upon
conversion and rights to receive any dividends or other distributions on the
Common Stock or other securities issuable upon conversion) by virtue of holding
such share of Series A Preferred Stock.
-11-
(e) Shares of Series A Preferred Stock duly
converted in accordance with Section 8 or Section 11 of this Articles of
Amendment will resume the status of authorized and unissued preferred stock,
undesignated as to series and available for future issuance. The Company may,
from time to time, take such appropriate action as may be necessary to reduce
the authorized number of shares of Series A Preferred Stock; provided, however, that the Company
shall not take any such action if such action would reduce the authorized number
of shares of Series A Preferred Stock below the sum of (i) the number of shares
of Series A Preferred Stock then outstanding and (ii) the number of shares of
Series A Preferred Stock issuable upon the exercise of any warrants then
outstanding.
(f) The Person or Persons entitled to receive the Common Stock and/or cash,
securities or other property issuable upon conversion of Series A Preferred
Stock shall be treated for all purposes as the record holder(s) of such shares
of Common Stock and/or securities as of the close of business on the applicable
Conversion Date with respect thereto. In the event that a Holder shall not by
written notice designate the name in which shares of Common Stock and/or cash,
securities or other property (including payments of cash in lieu of fractional
shares) to be issued or paid upon conversion of shares of Series A Preferred
Stock should be registered or paid or the manner in which such shares should be
delivered, the Company shall be entitled to register and deliver such shares,
and make such payment, in the name of the Holder and in the manner shown on the
records of the Company.
(g) On the Mandatory Conversion Date with respect to any share of Series A
Preferred Stock, certificates representing shares of Common Stock shall be
issued and delivered to the Holder thereof or such Holder’s designee upon
presentation and surrender of the certificate evidencing the Series A Preferred
Stock to the Company and, if required, the furnishing of appropriate
endorsements and transfer documents and the payment of all transfer and similar
taxes.
Section 10. Anti-Dilution Adjustments.
(a) The Conversion Price shall be subject to the following
adjustments.
(i) Stock Dividends and
Distributions. If the
Company pays dividends or other distributions on the Common Stock in shares of
Common Stock, then the Conversion Price in effect immediately prior to the
Ex-Date for such dividend or distribution will be multiplied by the following
fraction:
| OS0 |
| OS1 |
Where,
-12-
| OS0 = | the number of shares of Common Stock outstanding immediately prior to the Ex-Date for such dividend or distribution. | |
| OS1 = | the sum of the number of shares of Common Stock outstanding immediately prior to the Ex-Date for such dividend or distribution plus the total number of shares of Common Stock constituting such dividend or distribution. | |
For the purposes of this
clause (i), the number of shares of Common Stock at the time outstanding shall
not include shares acquired by the Company. If any dividend or distribution
described in this clause (i) is declared but not so paid or made, the Conversion
Price shall be readjusted, effective as of the date the Board of Directors
publicly announces its decision not to make such dividend or distribution, to
such Conversion Price that would be in effect if such dividend or distribution
had not been declared.
(ii) Subdivisions, Splits and Combination of the
Common Stock. If the
Company subdivides, splits or combines the shares of Common Stock, then the
Conversion Price in effect immediately prior to the effective date of such share
subdivision, split or combination will be multiplied by the following fraction:
| OS0 |
| OS1 |
Where,
| OS0 = | the number of shares of Common Stock outstanding immediately prior to the effective date of such share subdivision, split or combination. | |
| OS1 = | the number of shares of Common Stock outstanding immediately after the opening of business on the effective date of such share subdivision, split or combination. | |
For the purposes of this
clause (ii), the number of shares of Common Stock at the time outstanding shall
not include shares acquired by the Company. If any subdivision, split or
combination described in this clause (ii) is announced but the outstanding
shares of Common Stock are not subdivided, split or combined, the Conversion
Price shall be readjusted, effective as of the date the Board of Directors
publicly announces its decision not to subdivide, split or combine the
outstanding shares of Common Stock, to such Conversion Price that would be in
effect if such subdivision, split or combination had not been announced.
-13-
(iii) Issuance of Stock Purchase
Rights. If the Company
issues to all or substantially all holders of the shares of Common Stock rights
or warrants (other than rights or warrants issued pursuant to a dividend
reinvestment plan or share purchase plan or other similar plans) entitling them,
for a period of up to 45 days from the date of issuance of such rights or warrants, to subscribe for or
purchase the shares of Common Stock at less than the Current Market Price on the
date fixed for the determination of stockholders entitled to receive such rights
or warrants, then the Conversion Price in effect immediately prior to the
Ex-Date for such distribution will be multiplied by the following fraction:
| OS0 + Y |
| OS0 + X |
Where,
| OS0 = | the number of shares of Common Stock outstanding immediately prior to the Ex-Date for such distribution. | |
| X = | the total number of shares of Common Stock issuable pursuant to such rights or warrants. | |
| Y = | the number of shares of Common Stock equal to the aggregate price payable to exercise such rights or warrants divided by the Current Market Price on the date fixed for the determination of stockholders entitled to receive such rights or warrants. | |
For the purposes of this
clause (iii), the number of shares of Common Stock at the time outstanding shall
not include shares acquired by the Company. In the event that such rights or
warrants described in this clause (iii) are not so issued, the Conversion Price
shall be readjusted, effective as of the date the Board of Directors publicly
announces its decision not to issue such rights or warrants, to the Conversion
Price that would then be in effect if such issuance had not been declared. To
the extent that such rights or warrants are not exercised prior to their
expiration or shares of Common Stock are otherwise not delivered pursuant to
such rights or warrants upon the exercise of such rights or warrants, the
Conversion Price shall be readjusted to such Conversion Price that would then be
in effect had the adjustment made upon the issuance of such rights or warrants
been made on the basis of the delivery of only the number of shares of Common
Stock actually delivered. In determining the aggregate offering price payable
for such shares of Common Stock, there shall be taken into account any
consideration received for such rights or warrants and the value of such
consideration (if other than cash, to be determined by the Board of Directors).
-14-
(iv) Debt or Asset Distributions. If the Company distributes to all or
substantially all holders of shares of Common Stock evidences of indebtedness,
shares of capital stock, securities, cash or other assets (excluding any
dividend or distribution referred to in clause (i) above, any rights or warrants
referred to in clause (iii) above, any dividend or distribution paid exclusively
in cash, any consideration payable in connection with a tender or exchange offer
made by the Company or any of its subsidiaries, and any dividend of shares of
capital stock of any class or series, or similar equity interests, of or
relating to a subsidiary or other business unit in the case of certain spin-off
transactions as described below), then the Conversion Price in effect immediately prior to the Ex-Date for
such distribution will be multiplied by the following fraction:
| SP0 – FMV |
| SP0 |
Where,
| SP0 = | the Current Market Price per share of Common Stock on the Trading Day immediately preceding the Ex-Date. | |
| FMV = | the fair market value of the portion of the distribution applicable to one share of Common Stock on such date as determined by the Board of Directors, provided that, if “FMV” as set forth above is equal to or greater than “SP0” as set forth above, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder shall receive on the date on which such distribution is made to holders of Common Stock, for each share of Preferred Stock, the amount of such distribution such Holder would have received had such Holder owned a number of shares of Common Stock equal to the Base Value divided by the Applicable Conversion Price on the Ex-Date for such distribution. | |
In a “spin-off”, where
the Company makes a distribution to all holders of shares of Common Stock
consisting of capital stock of any class or series, or similar equity interests
of, or relating to, a subsidiary or other business unit, the Conversion Price
will be adjusted on the 15th Trading Day after the effective date of the
distribution by multiplying such Conversion Price in effect immediately prior to
such 15th Trading Day by the following fraction:
| MP0 |
| MP0 + MPS |
Where,
| MP0 = | the average of the Closing Prices of the Common Stock over the first ten Trading Days commencing on and including the fifth Trading Day following the effective date of such distribution. | |
| MPS = | the average of the Closing Prices of the capital stock or equity interests representing the portion of the distribution applicable to one share of Common Stock over the first ten Trading Days commencing on and including the fifth Trading Day following the effective date of such distribution, or, if not traded on a national or regional securities exchange or over-the-counter market, the fair market value of the capital stock or equity interests representing the portion of the distribution applicable to one share of Common Stock on such date as determined by the Board of Directors. | |
-15-
In the event that such
distribution described in this clause (iv) is not so paid or made, the
Conversion Price shall be readjusted, effective as of the date the Board of
Directors publicly announces its decision not to pay or make such dividend or
distribution, to the Conversion Price that would then be in effect if such
dividend or distribution had not been declared.
(v) Cash Distributions. If the
Company makes a distribution consisting exclusively of cash to all holders of
the Common Stock, excluding (a) any cash dividend on the Common Stock to the
extent a corresponding cash dividend is paid on the Series A Preferred Stock
pursuant to Section 4(b), (b) any cash that is distributed in a Reorganization
Event or as part of a “spin-off” referred to in clause (iv) above, (c) any
dividend or distribution in connection with the Company’s liquidation,
dissolution or winding-up, and (d) any consideration payable in connection with
a tender or exchange offer made by the Company or any of its subsidiaries, then
in each event, the Conversion Price in effect immediately prior to the Ex-Date
for such distribution will be multiplied by the following
fraction:
| SP0 – DIV |
| SP0 |
Where,
| SP0 = | the Closing Price per share of Common Stock on the Trading Day immediately preceding the Ex-Date. | |
| DIV = |
the
amount per share of Common Stock of the cash distribution, as determined
pursuant to the introduction to this paragraph
(v).
|
|
In the event that any
distribution described in this clause (v) is not so made, the Conversion Price
shall be readjusted, effective as of the date the Board of Directors publicly
announces its decision not to pay such distribution, to the Conversion Price
which would then be in effect if such distribution had not been
declared.
Notwithstanding the
foregoing, if “DIV” as set forth above is equal to or greater than “SP0” as set forth above, in
lieu of the foregoing adjustment, adequate provision shall be made so that each
Holder shall have the right to receive, on the date on which the relevant cash
dividend or distribution is distributed to holders of Common Stock, for each
share of Preferred Stock, the amount of cash such Holder would have received had
such Holder owned a number of shares of Common Stock equal to the Base Value
divided by the Applicable Conversion Price on the Ex-Date for such
distribution.
(vi) Self Tender Offers and Exchange
Offers. If the Company or
any of its subsidiaries successfully completes a tender or exchange offer for
the Common Stock where the cash and the value of any other consideration
included in the payment per share of the Common Stock exceeds the Closing Price
per share of the Common Stock on the Trading Day immediately succeeding the
expiration of the tender or exchange offer, then the Conversion Price in effect
at the close of business on such immediately succeeding Trading Day will be
multiplied by the following fraction:
| OS0 x SP0 |
| AC + (SP0 x OS1) |
-16-
Where,
| SP0 = | the Closing Price per share of Common Stock on the Trading Day immediately succeeding the expiration of the tender or exchange offer. | |
| OS0 = |
the
number of shares of Common Stock outstanding immediately prior to the
expiration of the tender or exchange offer, including any shares validly
tendered and not withdrawn.
|
|
| OS1= |
the number of
shares of Common Stock outstanding immediately after the expiration of the
tender or exchange offer.
|
|
| AC = |
the aggregate cash
and fair market value of the other consideration payable in the tender or
exchange offer, as determined by the Board of
Directors.
|
|
In the event that the
Company, or one of its subsidiaries, is obligated to purchase shares of Common
Stock pursuant to any such tender offer or exchange offer, but the Company, or
such subsidiary, is permanently prevented by applicable law from effecting any
such purchases, or all such purchases are rescinded, then the Conversion Price
shall be readjusted to be such Conversion Price that would then be in effect if
such tender offer or exchange offer had not been made.
(vii) Rights
Plans. To the extent that the Company has a rights plan in effect with
respect to the Common Stock on the Mandatory Conversion Date, upon conversion of
any shares of the Series A Preferred Stock, Holders will receive, in addition to
the shares of Common Stock, the rights under the rights plan, unless, prior to
the Mandatory Conversion Date, the rights have separated from the shares of
Common Stock, in which case the Conversion Price will be adjusted at the time of
separation as if the Company had made a distribution to all holders of the
Common Stock as described in clause (iv) above, subject to readjustment in the
event of the expiration, termination or redemption of such rights.
(b) The Company may make such decreases in the Conversion Price, in addition
to any other decreases required by this Section 10, if the Board of Directors
deems it advisable to avoid or diminish any income tax to holders of the Common
Stock resulting from any dividend or distribution of shares of Common Stock (or
issuance of rights or warrants to acquire shares of Common Stock) or from any
event treated as such for income tax purposes or for any other
reason.
-17-
(c)
(i) All adjustments to the
Conversion Price shall be calculated to the nearest 1/10 of a cent. No
adjustment in the Conversion Price shall be required if such adjustment would be
less than $0.01; provided that any adjustments which by reason of this
subparagraph are not required to be made shall be carried forward and taken into
account in any subsequent adjustment; provided further that on the Mandatory Conversion Date adjustments to the Conversion Price
will be made with respect to any such adjustment carried forward and which has
not been taken into account before such date.
(ii)
No adjustment to the Conversion
Price shall be made if Holders may participate in the transaction that would
otherwise give rise to an adjustment, as a result of holding the Series A
Preferred Stock (including without limitation pursuant to Section 4(b) hereof),
without having to convert the Series A Preferred Stock, as if they held the full
number of shares of Common Stock into which a share of the Series A Preferred
Stock may then be converted. No single event shall be subject to adjustment
under more than one subsection of this Section 10 so as to result in
duplication.
(iii) The
Applicable Conversion Price shall not be adjusted:
(A)
with respect to any Permitted
Rights Offering or 382 Rights Plan; provided that
Holders of Series A Preferred Stock participate in such distribution under such
382 Rights Plan as if their shares of Series A Preferred Stock were converted
into shares of Common Stock pursuant to Section 8 hereof;
(B)
upon the issuance of any shares
of Common Stock pursuant to any present or future plan providing for the
reinvestment of dividends or interest payable on the Company’s securities and
the investment of additional optional amounts in shares of Common Stock under
any such plan;
(C)
upon the issuance of any shares
of Common Stock or rights or warrants to purchase those shares pursuant to any
present or future employee, director or consultant benefit plan or program of or
assumed by the Company or any of its subsidiaries;
(D)
upon the issuance of any shares
of Common Stock pursuant to any option, warrant, right or exercisable,
exchangeable or convertible security outstanding as of the date shares of the
Series A Preferred Stock were first issued and not substantially amended
thereafter;
(E)
for a change in the par value or
no par value of Common Stock; or
(F)
for accrued and unpaid dividends
on the Series A Preferred Stock.
-18-
(d)
Whenever the Conversion Price is
to be adjusted in accordance with Section 10(a) or Section 10(b), the Company
shall: (i) compute the Conversion Price in accordance with Section 10(a) or
Section 10(b), taking into account the one cent threshold set forth in Section
10(c) hereof; (ii) as soon as practicable following the occurrence of an event
that requires an adjustment to the Conversion Price pursuant to Section 10(a) or
Section 10(b), taking into account the one percent threshold set forth in
Section 10(c) hereof (or if the Company is not aware of such occurrence, as soon
as practicable after becoming so aware), provide, or cause to be provided, a
written notice to the Holders of the occurrence of such event; and (iii) as soon
as practicable following the determination of the revised Conversion Price in
accordance with Section 10(a) or Section 10(b) hereof, provide, or cause to be
provided, a written notice to the Holders setting forth in reasonable detail the
method by which the adjustment to the Conversion Price was determined and
setting forth the revised Conversion Price.
Section 11.
Reorganization Events. (a) In the event that, prior to the
Mandatory Conversion Date with respect to the shares of Series A Preferred Stock
of any Holder, there occurs:
(i)
any consolidation, merger or
other similar business combination of the Company with or into another Person,
in each case pursuant to which the Common Stock will be converted into cash,
securities or other property of the Company or another
Person;
(ii)
any sale, transfer, lease or
conveyance to another Person of all or substantially all of the property and
assets of the Company, in each case pursuant to which the Common Stock will be
converted into cash, securities or other property of the Company or another
Person;
(iii)
any reclassification of the
Common Stock into securities including securities other than the Common Stock;
or
(iv)
any statutory exchange of the
outstanding shares of Common Stock for securities of another Person (other than
in connection with a merger or acquisition);
(any such event
specified in this Section 11(a), a “Reorganization Event”) then, subject to Section 8, each share of
such Holder’s Series A Preferred Stock outstanding immediately prior to such
Reorganization Event shall remain outstanding but each Holder shall have the
right, at its option, subject to the terms and provisions of this Section 11, to
convert any or all of such Holder’s shares of Series A Preferred Stock,
effective as of the close of business on the Reorganization Conversion Date
(with the term “Regulatory Approval” applied for such purpose, as applicable, to
the surviving entity in such Reorganization Event and its securities included in
the Exchange Property (as defined below)), into the type and amount of
securities, cash and other property receivable in such Reorganization Event by
the Holder (other than a counterparty to the Reorganization Event or an
Affiliate of such counterparty) in respect of each such share of Series A
Preferred Stock equal to the number of shares of Common Stock into which one
share of Series A Preferred Stock would then be convertible assuming that a
Mandatory Conversion Date in respect of such shares of Series A Preferred Stock
had occurred (such securities, cash and other property, the “Exchange Property”).
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(b) The conversion right of a Holder of Series A Preferred Stock pursuant to
this Section 11 shall be exercised by the Holder by the surrender of the
certificates representing the shares to be converted to the Company or to the
transfer agent for the Company, accompanied by a notice of reorganization
conversion, no later than the tenth day following the date of delivery to each
Holder of a notice from the Company of the expected consummation or the
consummation of a Reorganization Event.
(i) Immediately prior to the close of business on the Reorganization
Conversion Date, each converting Holder of Series A Preferred Stock shall be
deemed to be the Holder of record of the number of shares of Common Stock deemed
to be issuable upon conversion of such Holder’s Series A Preferred Stock in
accordance with clause (i) or (ii) of Section 11(a), notwithstanding that the
share register of the Company shall then be closed or that certificates
representing such Common Stock shall not then be actually delivered to such
Person.
(ii) Upon notice from the Company, each Holder of Series A Preferred Stock so
converted shall promptly surrender to the Company or its transfer agent
certificates representing the shares so converted (if not previously delivered),
duly endorsed in blank or accompanied by proper instruments of
transfer.
(c) In the event that holders of the shares of Common Stock have the
opportunity to elect the form of consideration to be received in connection with
any Reorganization Event, the Holders shall be entitled to the same right of
election as holders of the shares of Common Stock with respect to the form of
consideration to be received pursuant to this Section 11.
(d) The above provisions of this Section 11 shall similarly apply to
successive Reorganization Events and the provisions of Section 10 shall apply to
any shares of capital stock of the Company (or any successor) received by the
holders of the Common Stock in any such Reorganization Event.
(e) The Company (or any successor) shall, within seven days of the
consummation of any Reorganization Event, provide written notice to the Holders
of such consummation of such event and of the kind and amount of the cash,
securities or other property that constitutes the Exchange Property. Failure to
deliver such notice shall not affect the operation of this Section
11.
(f) The Company shall not enter into any agreement for a transaction
constituting a Reorganization Event unless such agreement provides for or does
not interfere with or prevent (as applicable) conversion of the Series A
Preferred Stock into the Exchange Property in a manner that is consistent with
and gives effect to this Section 11.
-20-
Section 12.
Voting Rights. (a) Holders will not have any voting rights,
including the right to elect any directors, except (i) voting rights, if any,
required by law, and (ii) voting rights, if any, described in this Section 12.
(b)
So long as any shares of Series A
Preferred Stock are outstanding, the vote or consent of the Holders of
three-quarters of the shares of Series A Preferred Stock at the time outstanding
voting as a single class with all other classes and series of Parity Securities
having similar voting rights then outstanding, given in person or by proxy,
either in writing without a meeting or by vote at any meeting called for the
purpose, will be necessary for effecting or validating, whether or not such
approval is required by Oregon law:
(i)
any amendment or alteration
(including by means of a merger, consolidation or otherwise) of the Articles of
Incorporation to authorize or create, or increase the authorized amount of, any
shares of, or any securities convertible into shares of, any class or series of
the Company’s capital stock ranking prior to the Series A Preferred Stock in the
payment of dividends or in the distribution of assets on any liquidation,
dissolution or winding-up of the Company;
(ii)
any amendment, alteration or
repeal (including by means of a merger, consolidation or otherwise) of any
provision of the Articles of Incorporation (including this Articles of
Amendment) or the Bylaws that would significantly and adversely alter or change
the terms, rights, preferences or privileges of the Series A Preferred Stock;
or
(iii)
the consummation of a binding
share exchange or reclassification involving the Series A Preferred Stock or a
merger or consolidation of the Company with another entity;
provided, however, that a Holder will
have no right to vote under this provision or under Oregon law if such voting
rights arise due to a Reorganization Event if (1) the Company shall have
complied with Section 11(f) or (2) in each case (x) the Series A Preferred Stock
remains outstanding or, in the case of any merger or consolidation with respect
to which the Company is not the surviving or resulting entity, is converted into
or exchanged for preference securities of the surviving or resulting entity or
its ultimate parent, that is an entity organized and existing under the laws of
the United States of America, any state thereof or the District of Columbia, and
(y) such Series A Preferred Stock remaining outstanding or such preference
securities, as the case may be, have such rights (including, but not limited to,
the right of conversion into common shares), preferences, privileges and voting
powers that, taken as a whole, as are not materially less favorable to the
Holders thereof than the rights, preferences, privileges and voting powers of
the Series A Preferred Stock, taken as a whole immediately prior to the
Reorganization Event, which rights shall include the right of the Holders to
convert their shares of Series A Preferred Stock as if a Mandatory Conversion
Date had already occurred; provided further, that any
increase in the amount of the authorized Preferred Stock or any securities
convertible into Preferred Stock or the creation and issuance, or an increase in
the authorized or issued amount, of any series of Preferred Stock or any
securities convertible into preferred stock ranking equally with and/or junior
to the Series A Preferred Stock with respect to the payment of dividends
(whether such dividends are cumulative or non-cumulative) and/or the
distribution of assets upon the Company’s liquidation, dissolution or winding-up
will not, in and of itself, be deemed to affect the voting powers, preferences
or special rights of the Series A Preferred Stock and, notwithstanding any
provision of Oregon law, Holders will have no right to vote solely by reason of
such an increase, creation or issuance.
-21-
Each holder of Series A
Preferred Stock will have one vote per share on any matter on which holders of
Series A Preferred Stock are entitled to vote, including any action by written
consent.
If an amendment,
alteration, repeal, share exchange, reclassification, merger or consolidation
described above would adversely affect one or more but not all series of
Preferred Stock with like voting rights (including the Series A Preferred Stock
for this purpose), then only the series affected and entitled to vote shall vote
as a class in lieu of all such series of Preferred Stock.
(c) Notwithstanding the foregoing, Holders shall not have any voting rights
if, at or prior to the effective time of the act with respect to which such vote
would otherwise be required, all outstanding shares of Series A Preferred Stock
shall have been converted into shares of Common Stock.
Section 13. Fractional Shares.
(a) No fractional shares of Common Stock will be issued as a result of any
conversion of shares of Series A Preferred Stock.
(b) In lieu of any fractional share of Common Stock otherwise issuable in
respect of any mandatory conversion pursuant to Section 8 hereof, the Company
shall pay an amount in cash (computed to the nearest cent) equal to the same
fraction of the Closing Price of the Common Stock determined as of the second
Trading Day immediately preceding the Mandatory Conversion Date.
(c) If more than one share of the Series A Preferred Stock is surrendered for
conversion at one time by or for the same Holder, the number of full shares of
Common Stock issuable upon conversion thereof shall be computed on the basis of
the aggregate number of shares of the Series A Preferred Stock so
surrendered.
Section 14. Reservation of Common Stock.
(a) Immediately following approval by the stockholders of the increase in the
authorized number of shares of Common Stock as described in the Stockholder
Proposals, the Company shall at all times thereafter reserve and keep available
out of its authorized and unissued Common Stock or shares acquired by the
Company, solely for issuance upon the conversion of shares of Series A Preferred
Stock as provided in this Articles of Amendment, free from any preemptive or
other similar rights, such number of shares of Common Stock as shall from time
to time be issuable upon the conversion of all the shares of Series A Preferred
Stock then outstanding, assuming that the Applicable Conversion Price equaled
the Base Price.
-22-
(b)
Notwithstanding the foregoing,
the Company shall be entitled to deliver upon conversion of shares of Series A
Preferred Stock, as herein provided, shares of Common Stock acquired by the
Company (in lieu of the issuance of authorized and unissued shares of Common
Stock), so long as any such acquired shares are free and clear of all liens,
charges, security interests or encumbrances (other than liens, charges, security
interests and other encumbrances created by the Holders).
(c)
All shares of Common Stock
delivered upon conversion of the Series A Preferred Stock shall be duly
authorized, validly issued, fully paid and non-assessable, free and clear of all
liens, claims, security interests and other encumbrances (other than liens,
charges, security interests and other encumbrances created by the Holders).
(d)
Prior to the delivery of any
securities that the Company shall be obligated to deliver upon conversion of the
Series A Preferred Stock, the Company shall use its reasonable best efforts to
comply with all federal and state laws and regulations thereunder requiring the
registration of such securities with, or any approval of or consent to the
delivery thereof by, any governmental authority.
(e)
The Company hereby covenants and
agrees that, if at any time the Common Stock shall be listed on the NASDAQ Stock
Market or any other national securities exchange or automated quotation system,
the Company will, if permitted by the rules of such exchange or automated
quotation system, list and keep listed, so long as the Common Stock shall be so
listed on such exchange or automated quotation system, all the Common Stock
issuable upon conversion of the Series A Preferred Stock.
Section 15.
Repurchases of Junior Securities
or Trust Preferred Securities. At any
time prior to the Approvals Date, for as long as the Series A Preferred Stock
remains outstanding, the Company shall not redeem, purchase or acquire, directly
or indirectly, any of its Junior Securities or trust preferred securities, other
than (i) redemptions, purchases or other acquisitions of Junior Securities in
connection with any benefit plan or other similar arrangement with or for the
benefit of any one or more employees, officers, directors or consultants or in
connection with a dividend reinvestment or stockholder stock purchase plan, (ii)
conversions into or exchanges for other Junior Securities and cash solely in
lieu of fractional shares of the Junior Securities, and (iii) as a result of
reclassification of Junior Securities for or into other Junior Securities.
-23-
Section
16. Replacement Certificates.
(a)
The Company shall replace any
mutilated certificate at the Holder’s expense upon surrender of that certificate
to the Company. The Company shall replace certificates that become destroyed,
stolen or lost at the Holder’s expense upon delivery to the Company of
satisfactory evidence that the certificate has been destroyed, stolen or lost,
together with any indemnity that may be required by the Company.
(b)
The Company shall not be required
to issue any certificates representing the Series A Preferred Stock on or after
a Conversion Date. In place of the delivery of a replacement certificate
following a Conversion Date, the Company, upon delivery of the evidence and
indemnity described in clause (a) above, shall deliver the shares of Common
Stock pursuant to the terms of the Series A Preferred Stock formerly evidenced
by the certificate.
Section 17.
Miscellaneous.
(a)
All notices referred to herein
shall be in writing, and, unless otherwise specified herein, all notices
hereunder shall be deemed to have been given upon the earlier of receipt thereof
or three Business Days after the mailing thereof if sent by registered or
certified mail (unless first-class mail shall be specifically permitted for such
notice under the terms of this Articles of Amendment) with postage prepaid,
addressed: (i) if to the Company, to its office at 5335 Meadows Road, Suite 201,
Lake Oswego, Oregon 97035, Attention: Robert D. Sznewajs, President and Chief
Executive Officer, with a copy to the Company’s legal department at 5335 Meadows
Road, Suite 201, Lake Oswego, Oregon 97035, Attention: Richard R. Rasmussen,
Executive Vice President, General Counsel and Secretary, or (ii) if to any
Holder, to such Holder at the address of such Holder as listed in the stock
record books of the Company, or (iii) to such other address as the Company or
any such Holder, as the case may be, shall have designated by notice similarly
given.
(b)
The Company shall pay any and all
stock transfer and documentary stamp taxes that may be payable in respect of any
issuance or delivery of shares of Series A Preferred Stock or shares of Common
Stock or other securities issued on account of Series A Preferred Stock pursuant
hereto or certificates representing such shares or securities. The Company shall
not, however, be required to pay any such tax that may be payable in respect of
any transfer involved in the issuance or delivery of shares of Series A
Preferred Stock or Common Stock or other securities in a name other than that in
which the shares of Series A Preferred Stock with respect to which such shares
or other securities are issued or delivered were registered, or in respect of
any payment to any Person other than a payment to the registered holder thereof,
and shall not be required to make any such issuance, delivery or payment unless
and until the Person otherwise entitled to such issuance, delivery or payment
has paid to the Company the amount of any such tax or has established, to the
satisfaction of the Company, that such tax has been paid or is not payable.
(c)
No share of Series A Preferred
Stock shall have any rights of preemption whatsoever as to any securities of the
Company, or any warrants, rights or options issued or granted with respect thereto, regardless of how such
securities, or such warrants, rights or options, may be designated, issued or
granted.
(d)
The shares of Series A Preferred Stock shall not have any voting powers,
preferences or relative, participating, optional or other special rights, or
qualifications, limitations or restrictions thereof, other than as set forth
herein or in the Articles of Incorporation or as provided by applicable law.
-24-
TO BE EFFECTIVE: OCTOBER 23,
2009
ARTICLES OF AMENDMENT
TO DESIGNATE THE TERMS OF
MANDATORILY CONVERTIBLE
CUMULATIVE
PARTICIPATING PREFERRED STOCK, SERIES
B
OF
WEST COAST BANCORP
Pursuant to Section
60.131 of the Oregon
Business Corporation Act
Business Corporation Act
WEST COAST BANCORP, a corporation organized and existing under
the 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 Articles of
Incorporation and the Bylaws of the Company and applicable law, adopted the
following Articles of Amendment on October 22, 2009 with an effective date of
October 23, 2009, creating a series of Preferred Stock of the Company designated
as “Mandatorily Convertible Cumulative Participating Preferred Stock, Series B”.
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 Number of Shares. There is hereby created out of the authorized
and unissued shares of preferred stock of the Company a series of preferred
stock designated as the “Mandatorily Convertible Cumulative Participating
Preferred Stock, Series B” (the “Series B Preferred Stock”). The number of shares constituting such
series shall be 600,000. The Series B Preferred Stock shall have no par value.
Section 2. Ranking. The Series
B Preferred Stock will, with respect to dividend rights and rights on
liquidation, winding-up and dissolution, rank (i) on a parity with Series A
Preferred Stock and each other class or series of equity securities of the
Company, if any, the terms of which do not expressly provide that such class or
series will rank senior or junior to the Series B Preferred Stock as to dividend
rights and rights on liquidation, winding-up and dissolution of the Company
(collectively referred to as “Parity Securities”), and (ii) senior to the Company’s common
stock, no par value (the “Common Stock”) and each other class or series of capital
stock outstanding or established
after the Effective Date by the Company the terms of which expressly provide
that it ranks junior to the Series B Preferred Stock as to dividend rights
and/or as to rights on liquidation, winding-up and dissolution of the Company
(collectively referred to as “Junior Securities”). The Company has the right to authorize
and/or issue additional shares or classes or series of Junior Securities or
Parity Securities without the consent of the Holders; provided,
however, that for as long as the Approvals Date has
not occurred and the Series B Preferred Stock remains outstanding, no preferred
stock of the Company that would rank senior to the Series A Preferred Stock or
the Series B Preferred Stock may be issued without, in each case, the express
approval of the Holders of at least three-quarters of the issued and outstanding
Series A Preferred Stock and Series B Preferred Stock, voting as a single
class.
Section 3. Definitions. Unless
the context or use indicates another meaning or intent, the following terms
shall have the following meanings, whether used in the singular or the plural:
(a) “382 Rights Plan” means a stockholder rights plan designed to
preserve the utilization of tax benefits and assets and the associated
declaration, issuance and exercise of related securities (including rights and
shares of a new series of junior participating preferred stock).
(b) “Affiliate” means, with respect to any Person, any
Person directly or indirectly controlling, controlled by or under common control
with, such other person. For purposes of this definition, “control” (including,
with correlative meanings, the terms “controlled by” and “under common control
with”) when used with respect to any Person, means the possession, directly or
indirectly, of the power to cause the direction of management or policies of
such person, whether through the ownership of voting securities, by contract or
otherwise.
(c) “Applicable Conversion Price” means the Conversion Price in effect at any
given time.
(d) “Approvals Date” means, with respect to the shares of Series
B Preferred Stock of any Holder, the day that is the fifth Business Day after
the day on which the Company shall have obtained stockholder approval in the
manner required therefor by NASDAQ’s rules, regulations and interpretations and
the Oregon Business Corporation Act for all of the Stockholder Proposals.
(e) “Articles of Amendment” means this Articles of Amendment to
designate the terms of Mandatorily Convertible Cumulative Participating
Preferred Stock, Series B, of West Coast Bancorp, dated October 23, 2009.
(f) “Articles of Incorporation” means the Restated Articles of Incorporation
of the Company, as may be amended from time to time.
(g) “Base Price” means $2.00.
(h) “Base Value” means the product of (x) the Base Price and
(y) 50.
-2-
(i) “Board of Directors” means the board of directors of the Company.
(j) “Business Day” means any day other than a Saturday, Sunday
or any other day on which banks in the State of Oregon are generally required or
authorized by law to be closed.
(k) “Bylaws” means the Bylaws of the Company as may be
amended from time to time.
(l) “Class C Warrant” means a Class C warrant of the Company to
purchase shares of Series B Preferred Stock.
(m) “Closing Price” of the Common Stock (or other relevant
capital stock or equity interest) on any date of determination means the closing
sale price or, if no closing sale price is reported, the last reported sale
price of the shares of the Common Stock (or other relevant capital stock or
equity interest) on the NASDAQ Stock Market on such date. If the Common Stock
(or other relevant capital stock or equity interest) is not traded on the NASDAQ
Stock Market on any date of determination, the Closing Price of the Common Stock
(or other relevant capital stock or equity interest) on such date of
determination means the closing sale price as reported in the composite
transactions for the principal U.S. national or regional securities exchange on
which the Common Stock (or other relevant capital stock or equity interest) is
so listed or quoted, or, if no closing sale price is reported, the last reported
sale price on the principal U.S. national or regional securities exchange on
which the Common Stock (or other relevant capital stock or equity interest) is
so listed or quoted, or if the Common Stock (or other relevant capital stock or
equity interest) is not so listed or quoted on a U.S. national or regional
securities exchange, the last quoted bid price for the Common Stock (or other
relevant capital stock or equity interest) in the over-the-counter market as
reported by Pink Sheets LLC or similar organization, or, if that bid price is
not available, the market price of the Common Stock (or other relevant capital
stock or equity interest) on that date as determined by a nationally recognized
independent investment banking firm retained by the Company for this
purpose.
For purposes of this Articles of Amendment,
all references herein to the “Closing Price” and “last reported sale price” of the Common Stock (or other relevant
capital stock or equity interest) on the NASDAQ Stock Market shall be such
closing sale price and last reported sale price as reflected on the website of
the NASDAQ Stock Market (http://www.nasdaq.com) and as reported by Bloomberg
Professional Service; provided that in
the event that there is a discrepancy between the closing sale price or last
reported sale price as reflected on the website of the NASDAQ Stock Market and
as reported by Bloomberg Professional Service, the closing sale price and last
reported sale price on the website of the NASDAQ Stock Market shall govern. If a
Reorganization Event has occurred and (1) the Exchange Property consists only of
shares of common stock, the “Closing Price” shall be based on the closing sale
price per share of such common stock; (2) the Exchange Property consists only of
cash, the “Closing Price” shall be the cash amount paid per share; and (3) the
Exchange Property consists of securities, cash and/or other property, the
“Closing Price” shall be based on the sum, as applicable, of (x) the closing
sale price of such common stock, (y) the cash amount paid per share and (z) the
value (as determined by the Board of Directors, acting in good faith, from time
to time) of any other securities or property paid to the holders of the Common
Stock in connection with the Reorganization Event.
-3-
(n) “Common Stock” has the meaning set forth in Section 2.
(o) “Company” means West Coast Bancorp, an Oregon
corporation.
(p) “Conversion Date” means a Mandatory Conversion Date or a
Reorganization Conversion Date.
(q) “Conversion Price” means for each share of Series B Preferred
Stock, the Base Price, subject to adjustment as set forth herein.
(r) “Current Market Price” means, on any date, the average of the daily
Closing Price per share of the Common Stock or other securities on each of the
ten (10) consecutive Trading Days preceding the earlier of the day before the
date in question and the day before the Ex-Date with respect to the issuance or
distribution giving rise to an adjustment to the Conversion Price pursuant to
Section 10.
(s) “Dividend Payment Date” has the meaning set forth in Section 4(a).
(t) “Dividend Period” has the meaning set forth in Section 4(a).
(u) “Effective Date” means the date on which shares of the Series
B Preferred Stock are first issued.
(v) “Exchange Property” has the meaning set forth in Section 11(a).
(w) “Ex-Date” when used with respect to any issuance or
distribution, means the first date on which the Common Stock or other securities
trade without the right to receive the issuance or distribution giving rise to
an adjustment to the Conversion Price pursuant to Section 10.
(x) “Holder” means the Person in whose name the shares of
the Series B Preferred Stock are registered, which may be treated by the Company
as the absolute owner of the shares of Series B Preferred Stock for the purpose
of making payment and settling conversions and for all other purposes.
(y) “Junior Securities” has the meaning set forth in Section 2.
(z) “Liquidation Preference” means, as to the Series B Preferred Stock,
$100 per share (as adjusted for any split, subdivision, combination,
consolidation, recapitalization or similar event with respect to the Series B
Preferred Stock).
-4-
(aa) “Mandatory Conversion Date” means, with respect to shares of Series B
Preferred Stock of any Holder, at any time following the Approvals Date, the
date of the consummation of the transfer by such Holder of Series B
Preferred Stock to third parties in a Widely Dispersed Offering; provided, however,
that if a Mandatory Conversion Date would otherwise occur on or after an Ex-Date
for an issuance or distribution that results in an adjustment of the Conversion
Price pursuant to Section 10 and on or before the Record Date for such issuance
or distribution, such Mandatory Conversion Date shall instead occur on the first
calendar day after the Record Date for such issuance or distribution.
(bb) “Notice of Mandatory
Conversion” has the
meaning set forth in Section 9(a).
(cc) “Parity Securities” has the meaning set forth in Section 2.
(dd) “Permitted Rights Offering” shall mean an offering of up to $10 million
of aggregate offering price of Common Stock pursuant to subscription rights
distributed pro rata to the then existing holders of record of Common Stock at a
price per share of Common Stock not less than $2.00, and the associated
declaration, issuance and exercise of the subscription rights with respect to
such offering and shares of Common Stock issuable in connection with the
exercise of any such rights; provided that the Company will use its best efforts
to ensure that such rights offering, including exercise of such right, is
completed as soon as practicable and in no event later than March 1, 2010.
(ee) “Person” has the meaning given to it in Section
3(a)(9) of the Exchange Act and as used in Sections 13(d)(3) and 14(d)(2) of the
Exchange Act.
(ff) “Preferred Stock” means any and all series of preferred stock
of the Company, including the Series B Preferred Stock.
(gg) “Record Date” has the meaning set forth in Section 4(a).
(hh) “Regulatory Approvals” means, as to any Holder, to the extent
applicable and required to permit such Holder to convert such Holder’s shares of
Series B Preferred Stock into Common Stock and to own such Common Stock without
such Holder being in violation of applicable law, rule or regulation, receipt or
making of approvals and authorizations of, filings and registrations with,
notifications to, or determinations by any U.S. federal, state or foreign
governmental authority or self-regulatory organization, including the expiration
or termination of any applicable waiting period under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976.
(ii) “Reorganization Conversion
Date” means, with respect
to the shares of Series B Preferred Stock of any Holder, the date of the
consummation of the Reorganization Event or, if later, and applicable to such
Holder, the first date on which all Regulatory Approvals with respect to the
conversion of such shares shall have been obtained or made by such Holder;
provided, however, that if a
Reorganization Conversion Date would otherwise occur on or after an Ex-Date for
an issuance or distribution that results in an adjustment of the Conversion
Price pursuant to Section 10 and on or before the Record Date for such issuance
or distribution, such Reorganization Conversion Date shall instead occur on the
first calendar day after the Record Date for such issuance or
distribution.
-5-
(jj) “Reorganization Event” has the meaning set forth in Section 11(a).
(kk) “Series A Preferred Stock” means the Mandatorily Convertible Cumulative
Participating Preferred Stock, Series A, of the Company.
(ll) “Series B Preferred Stock” has the meaning set forth in Section 1.
(mm) “Stockholder Proposals” means the stockholder proposals to (i)
approve the issuance of Common Stock upon conversion of the Series A Preferred
Stock and Series B Preferred Stock (including the Series B Preferred Stock
issuable upon the exercise of Class C Warrants) for purposes of Rule 5635 of the
NASDAQ Listing Rules and (ii) amend the Articles of Incorporation to increase
the number of authorized shares of Common Stock to 250,000,000.
(nn) “Trading Day” means a day on which the shares of Common
Stock:
(i) are not suspended from trading on any national
or regional securities exchange or association or over-the-counter market at the
close of business; and
(ii) have traded at least once on the national or
regional securities exchange or association or over-the-counter market that is
the primary market for the trading of the Common Stock.
(oo) “Voting Securities” means, at any time, shares of any class of
capital stock of the Company that are then entitled to vote generally in the
election of directors.
(pp) “Widely Dispersed Offering” means (a) a widespread public distribution,
including pursuant to Rule 144 under the Securities Act of 1933, as amended, (b)
a transfer in which no transferee (or group of associated transferees) would
receive more than 2% of any class of Voting Securities of the Company or (c) a
transfer to a transferee that would control more than 50% of the Voting
Securities of the Company without any transfer from the transferor.
-6-
Section 4. Dividends. (a) From
and after the Effective Date and prior to March 1, 2010, Holders shall be
entitled to receive, when, as and if declared by the Board of Directors, out of
the funds legally available therefor, dividends in the amount determined as set
forth in Section 4(b)(i), and no more. In the event that the Stockholder
Proposals are not approved by the holders of Common Stock in the manner required
therefor by NASDAQ’s rules, regulations and interpretations and the Oregon
Business Corporation Act prior to March 1, 2010, from and after March 1, 2010,
Holders shall be entitled to receive, when, as and if declared by the Board of
Directors, out of the funds legally available therefor, cumulative cash
dividends in the amount determined as set forth in Section 4(b)(ii), and
no more; provided, however, from and
after such date as the Stockholder Proposals are approved in the manner required
therefor by NASDAQ’s rules, regulations and interpretations and the Oregon
Business Corporation Act, Holders shall be entitled to receive, when, as and if
declared by the Board of Directors, out of the funds legally available therefor,
dividends in the amount determined as set forth in Section 4(b)(i), and no more.
Except as otherwise provided herein, such dividends shall be payable quarterly
in arrears (as provided below in this Section 4(a)), but only when, as and if
declared by the Board of Directors, on March 15, June 15, September 15 and
December 15 (each, a “Dividend Payment Date”), commencing on December 15, 2009; provided
that if any such Dividend Payment Date would otherwise occur on a day that is
not a Business Day, such Dividend Payment Date shall instead be (and any
dividend payable on Series B Preferred Stock on such Dividend Payment Date shall
instead be payable on) the immediately succeeding Business Day, unless such
immediately succeeding Business Day falls in the next calendar month, in which
case such Dividend Payment Date shall instead be (and any such dividend shall
instead be payable on) the immediately preceding Business Day. Dividends on
Series B Preferred Stock shall accrue at any time that dividends on the Series B
Preferred Stock are cumulative (whether or not in any dividend period or periods
(each, a “Dividend Period”) there shall be funds of the Company legally
available for the payment of such dividends and whether or not such dividends
are authorized or declared) and accrued dividends shall accumulate to the extent
not paid on the Dividend Payment Date first following the Dividend Period for
which they accrue. As used herein, the term “accrued” with respect to dividends
includes both accrued and accumulated dividends.
Dividends that are payable on Series B Preferred Stock on any Dividend
Payment Date will be payable to holders of record of Series B Preferred Stock as
they appear on the stock register of the Company on the applicable record date,
which shall be the 15th calendar day before such Dividend Payment Date or such
other record date fixed by the Board of Directors or a duly authorized committee
of the Board of Directors that is not more than 60 nor less than 10 days prior
to such Dividend Payment Date (each, a “Record Date”). Any such day that is a Record Date shall
be a Record Date whether or not such day is a Business Day.
Each Dividend Period shall commence on and include a Dividend Payment
Date (other than the initial Dividend Period, which shall commence on and
include the date of original issue of the Series B Preferred Stock, provided that, for
any share of Series B Preferred Stock issued after such original issue date, the
initial Dividend Period for such shares may commence on and include such other
date as the Board of Directors or a duly authorized committee of the Board of
Directors shall determine and publicly disclose) and shall end on and include
the calendar day preceding the next Dividend Payment Date. Dividends payable on
the Series B Preferred Stock in respect of any Dividend Period shall be computed
by the Company on the basis of a 360-day year and the actual number of days
elapsed in such Dividend Period, except that dividends for the initial period
will be calculated from the original issue date. Dividends payable in respect of
a Dividend Period shall be payable in arrears (i.e., on the first Dividend
Payment Date after such Dividend Period).
-7-
(b) (i) Subject to Section 4(a), if the Board of Directors declares and pays
a dividend or other distribution in respect of Common Stock (other than with
respect to a Permitted Rights Offering or 382 Rights Plan; provided that
Holders of Series B Preferred Stock participate in such distribution under such
382 Rights Plan as if their shares of Series B Preferred Stock were converted
into shares of Common Stock pursuant to Section 8 hereof), then the Board of
Directors shall declare and pay to the Holders of the Series B Preferred Stock,
on the same dates on which such dividend or other distribution is declared and
paid on the Common Stock, a dividend or other distribution in an amount per
share of Series B Preferred Stock equal to the product of (x) the per share
dividend or other distribution declared and paid in respect of each share of
Common Stock and (y) the number of shares of Common Stock into which such shares
of Series B Preferred Stock is convertible as of the Record Date for such
dividend or distribution.
(ii) Subject to Section 4(a), the dividend rate, and the rate at which
dividends shall accrue, on each share of Series B Preferred Stock, for each
Dividend Period, shall be at an annual rate equal to 15%, calculated with
respect to the Base Value of a share of Series B Preferred Stock.
(c) Dividends in arrears on the Series B Preferred Stock in respect of a
Dividend Period not declared for payment or to the extent not paid on the first
Dividend Payment Date following the Dividend Period for which they accrue may be
declared by the Board of Directors and paid on any date fixed by the Board of
Directors, whether or not a Dividend Payment Date, to the holders of record of
Series B Preferred Stock as they appear on the stock register of the Company on
a record date selected by the Board of Directors, which shall (a) not precede
the date the Board of Directors declares the dividend payable and (b) not be
more than 60 days prior to the date the dividend is paid.
(d) At any time prior to the Approvals Date, so long as any share of Series B
Preferred Stock remains outstanding, (1) no dividend or interest shall be
declared and paid or set aside for payment and no distribution shall be declared
and made or set aside for payment on any Junior Securities (other than a
dividend payable solely in shares of Junior Securities) or trust preferred
securities and (2) no shares of Junior Securities or trust preferred securities
shall be purchased, redeemed or otherwise acquired by the Company, directly or
indirectly. At any time after the approval of the Stockholder Proposals and so
long as any share of Series B Preferred Stock remains outstanding, the foregoing
limitations shall not apply if full dividends on all outstanding shares of
Series B Preferred Stock for the then-current dividend period have been paid in
full or declared and a sum sufficient for the payment thereof set aside for all
outstanding shares of Series B Preferred Stock. The foregoing limitations shall
not apply (i) with respect to a Permitted Rights Offering (ii) to redemptions,
purchases or other acquisitions of shares of Junior Securities in connection
with any benefit plan or other similar arrangement with or for the benefit of
any one or more employees, officers, directors or consultants or in connection
with a dividend reinvestment or stockholder stock purchase plan; (iii) to any
declaration of a dividend in connection with any stockholders’ rights plan, or
the issuance of rights, stock or other property under any stockholders’ rights
plan, or the redemption or repurchase of rights pursuant thereto; and (iv) to
conversions into or exchanges for other Junior Securities and cash solely in
lieu of fractional shares of the Junior Securities.
-8-
(e) So long as any shares of Series B Preferred Stock remain outstanding, no
dividends shall be declared or paid or set aside for payment on any Parity
Securities for any period (other than with respect to a Permitted Rights
Offering or 382 Rights Plan) unless full dividends on all outstanding shares of
Series B Preferred Stock for the then-current dividend period have been paid in
full or declared and a sum sufficient for the payment thereof set aside for all
outstanding shares of Series B Preferred Stock. To the extent the Company declares dividends on the
Series B Preferred Stock and on any Parity Securities but does not make full
payment of such declared dividends, the Company shall allocate the dividend
payments on a pro rata basis among the holders of the shares of Series B
Preferred Stock and the holders of any Parity Securities then outstanding. For
purposes of calculating the pro rata allocation of partial dividend payments,
the Company shall allocate those payments so that the respective amounts of
those payments bear the same ratio to each other as all accrued and unpaid
dividends per share on the Series B Preferred Stock and all Parity Securities
bear to each other.
(f) At any time that dividends on the Series B Preferred Stock are not
cumulative, and if a Conversion Date with respect to any share of Series B
Preferred Stock is prior to the record date for the payment of any dividend on
the Common Stock, the Holder of such share of Series B Preferred Stock will not
have the right to receive any corresponding dividends on the Series B Preferred
Stock. At any time that dividends on the Series B Preferred Stock are not
cumulative, and if the Conversion Date with respect to any share of Series B
Preferred Stock is after the Record Date for any declared dividend and prior to
the payment date for that dividend, the Holder thereof shall receive that
dividend on the relevant payment date if such Holder was the Holder of record on
the Record Date for that dividend. Any accrued and unpaid cumulative dividends
on the Series B Preferred Stock shall be payable in cash on the Conversion Date.
Section 5. Liquidation. (a) In the event the Company voluntarily or
involuntarily liquidates, dissolves or winds up, the Holders at the time shall
be entitled to receive, for each share of the Series B Preferred Stock, the sum
of (i) liquidating distributions in an amount equal to the Liquidation
Preference, plus any accrued but unpaid dividends thereon to and including the
date of such liquidation, out of assets legally available for distribution to
the Company’s stockholders, before any distribution of assets is made to the
holders of the Common Stock or any other Junior Securities and (ii) after all
distributions have been made to Holders pursuant to clause (i) of this sentence,
liquidating distributions, as determined by the Company (or the trustee or other
Person or Persons administering its liquidation, dissolution or winding-up in
accordance with applicable law) as of a date that is at least ten (10) Business
Days before the first liquidating distribution is made on Series B Preferred
Stock, that would be made on the number of shares of Common Stock equal to the
Base Value divided by the Applicable Conversion Price as if all of the
outstanding shares of Series A Preferred Stock and Series B Preferred Stock had
been converted into Common Stock on such date of determination, out of assets
legally available for distribution to the Company’s stockholders, simultaneous
with any distribution of assets made to the holders of the Common Stock. The
Company shall notify each Holder of the amount it has calculated pursuant to
this Section 5 by first-class mail, postage prepaid, addressed to the Holders at
their respective last addresses appearing on the books of the Company. Such
mailing shall be made not later than five Business Days before the first
liquidating distribution is made on shares of Series B Preferred
Stock.
-9-
(b) In the event the assets of the Company available for distribution to
stockholders upon any liquidation, dissolution or winding-up of the affairs of
the Company, whether voluntary or involuntary, shall be insufficient to pay in
full the amounts payable with respect to all outstanding shares of the Series B
Preferred Stock and the corresponding amounts payable on any Parity Securities,
Holders and the holders of such Parity Securities shall share ratably in any
distribution of assets of the Company in proportion to the full respective
liquidating distributions to which they would otherwise be respectively
entitled.
(c) The Company’s consolidation or merger with or into any other entity, the
consolidation or merger of any other entity with or into the Company, or the
sale of all or substantially all of the Company’s property or business will not
constitute its liquidation, dissolution or winding-up.
Section 6. Maturity. The
Series B Preferred Stock shall be perpetual unless converted in accordance with
this Articles of Amendment.
Section 7. Redemptions.
(a) Redemption. The
shares of Series B Preferred Stock are not redeemable by the Company.
(b) No Sinking Fund.
The Series B Preferred Stock will not be subject to any mandatory redemption,
sinking fund or other similar provisions.
Section 8. Conversion.
(a) Effective as of the close of business on the Mandatory Conversion Date
with respect to the shares of Series B Preferred Stock of a Holder, such
Holder’s shares of Series B Preferred Stock shall automatically convert into
shares of Common Stock as set forth below. The number of shares of Common Stock
into which a share of Series B Preferred Stock shall be convertible shall be
determined by dividing the Base Value by the Applicable Conversion Price
(subject to the conversion procedures of Section 9 hereof), provided that cash
will be paid in lieu of fractional shares in accordance with Section 13 hereof.
(b) Notwithstanding anything herein to the contrary, in no event shall a
transferee of a Widely Disbursed Offering be entitled to receive shares of
Common Stock upon any conversion of Series B Preferred Stock pursuant to this
Section 8 or Section 11 to the extent (but only to the extent) that at such time
the transferee Holder does not have any required Regulatory Approvals. If any
delivery of shares of Common Stock owed to a transferee upon conversion of
Series B Preferred Stock is not made, in whole or in part, as a result of the
foregoing limitations, the Company’s obligation to make such delivery shall not
be extinguished and the Company shall, at the option of the transferee Holder,
deliver such shares as promptly as practicable after such converting Holder
gives notice to the Company that the requirements of this Section 8(b) are
met.
-10-
Section 9. Conversion Procedures.
(a) Each Holder shall promptly provide written notice to the Company of its
intent to transfer its Series B Preferred Stock in a Widely Dispersed Offering
and, promptly upon receipt of each required Regulatory Approval applicable to
the transferee, such transferee shall provide written notice to the Company of
such receipt. Upon occurrence of the Mandatory Conversion Date with respect to
shares of any Holder, the Company shall provide notice of such conversion to
such Holder (such notice a “Notice of Mandatory Conversion”). In addition to any information required by
applicable law or regulation, the Notice of Mandatory Conversion with respect to
such Holder shall state, as appropriate:
(i) the Mandatory Conversion Date applicable to such Holder;
(ii) the number of shares of Common Stock to be issued upon conversion of each
share of Series B Preferred Stock held of record by such Holder and subject to
such mandatory conversion; and
(iii) the place or places where certificates for shares of Series B Preferred
Stock held of record by such Holder are to be surrendered for issuance of
certificates representing shares of Common Stock.
(b) In the event that such Holder fails to surrender the required
certificates for shares of Series B Preferred Stock held of record by such
Holder within 30 days after delivery of the Mandatory Conversion Date, the
Company shall, by written notice to such Holder, indicate which shares have been
converted pursuant to Section 8.
(c) Effective immediately prior to the close of business on any Conversion
Date with respect to any share of Series B Preferred Stock, dividends shall no
longer be declared on any such converted share of Series B Preferred Stock and
such share of Series B Preferred Stock shall cease to be outstanding, in each
case, subject to the right of the Holder to receive any accrued and unpaid or
declared and unpaid dividends on such share to the extent provided in Section
4(f) and any other payments to which such Holder is otherwise entitled pursuant
to Section 8, Section 11 or Section 13 hereof, as applicable.
(d) No allowance or adjustment, except pursuant to Section 10, shall be made
in respect of dividends payable to holders of the Common Stock of record as of
any date prior to the close of business on any Conversion Date with respect to
any share of Series B Preferred Stock. Prior to the close of business on the
Conversion Date with respect to any share of Series B Preferred Stock, shares of
Common Stock issuable upon conversion thereof, or other securities issuable upon
conversion of, such share of Series B Preferred Stock shall not be deemed
outstanding for any purpose, and the Holder thereof shall have no rights with
respect to the Common Stock or other securities issuable upon conversion
(including voting rights, rights to respond to tender offers for the Common
Stock or other securities issuable upon conversion and rights to receive any
dividends or other distributions on the Common Stock or other securities
issuable upon conversion) by virtue of holding such share of Series B Preferred
Stock.
-11-
(e) Shares of Series B Preferred Stock duly converted in accordance with
Section 8 or Section 11 of this Articles of Amendment will resume the status of
authorized and unissued preferred stock, undesignated as to series and available
for future issuance. The Company may, from time to time, take such appropriate
action as may be necessary to reduce the authorized number of shares of Series B
Preferred Stock; provided, however, that the
Company shall not take any such action if such action would reduce the
authorized number of shares of Series B Preferred Stock below the sum of (i) the
number of shares of Series B Preferred Stock then outstanding and (ii) the
number of shares of Series B Preferred Stock issuable upon the exercise of any
warrants then outstanding.
(f) The Person or Persons entitled to receive the Common Stock and/or cash,
securities or other property issuable upon conversion of Series B Preferred
Stock shall be treated for all purposes as the record holder(s) of such shares
of Common Stock and/or securities as of the close of business on the applicable
Conversion Date with respect thereto. In the event that a Holder shall not by
written notice designate the name in which shares of Common Stock and/or cash,
securities or other property (including payments of cash in lieu of fractional
shares) to be issued or paid upon conversion of shares of Series B Preferred
Stock should be registered or paid or the manner in which such shares should be
delivered, the Company shall be entitled to register and deliver such shares,
and make such payment, in the name of the Holder and in the manner shown on the
records of the Company.
(g) On the Mandatory Conversion Date with respect to any share of Series B
Preferred Stock, certificates representing shares of Common Stock shall be
issued and delivered to the Holder thereof or such Holder’s designee upon
presentation and surrender of the certificate evidencing the Series B Preferred
Stock to the Company and, if required, the furnishing of appropriate
endorsements and transfer documents and the payment of all transfer and similar
taxes.
Section 10. Anti-Dilution Adjustments.
(a) The Conversion Price shall be subject to the following adjustments.
-12-
(i) Stock Dividends and
Distributions. If the
Company pays dividends or other distributions on the Common Stock in shares of
Common Stock, then the Conversion Price in effect immediately prior to the
Ex-Date for such dividend or distribution will be multiplied by the following
fraction:
| OS0 |
| OS1 |
Where,
| OS0 = | the number of shares of Common Stock outstanding immediately prior to the Ex-Date for such dividend or distribution. | |
| OS1 = | the sum of the number of shares of Common Stock outstanding immediately prior to the Ex-Date for such dividend or distribution plus the total number of shares of Common Stock constituting such dividend or distribution. |
For the purposes of this clause (i), the number of shares of Common Stock
at the time outstanding shall not include shares acquired by the Company. If any
dividend or distribution described in this clause (i) is declared but not so
paid or made, the Conversion Price shall be readjusted, effective as of the date
the Board of Directors publicly announces its decision not to make such dividend
or distribution, to such Conversion Price that would be in effect if such
dividend or distribution had not been declared.
(ii) Subdivisions, Splits and Combination of the
Common Stock. If the
Company subdivides, splits or combines the shares of Common Stock, then the
Conversion Price in effect immediately prior to the effective date of such share
subdivision, split or combination will be multiplied by the following fraction:
| OS0 |
| OS1 |
Where,
| OS0 = | the number of shares of Common Stock outstanding immediately prior to the effective date of such share subdivision, split or combination. | |
| OS1 = | the number of shares of Common Stock outstanding immediately after the opening of business on the effective date of such share subdivision, split or combination. |
For the purposes of this clause (ii), the number of shares of Common
Stock at the time outstanding shall not include shares acquired by the Company.
If any subdivision, split or combination described in this clause (ii) is
announced but the outstanding shares of Common Stock are not subdivided, split
or combined, the Conversion Price shall be readjusted, effective as of the date
the Board of Directors publicly announces its decision not to subdivide, split
or combine the outstanding shares of Common Stock, to such Conversion Price that
would be in effect if such subdivision, split or combination had not been
announced.
-13-
(iii) Issuance of Stock Purchase
Rights. If the Company
issues to all or substantially all holders of the shares of Common Stock rights
or warrants (other than rights or warrants issued pursuant to a dividend
reinvestment plan or share purchase plan or other similar plans) entitling them,
for a period of up to 45 days from the date of issuance of such rights or
warrants, to subscribe for or purchase the shares of Common Stock at less than
the Current Market Price on the date fixed for the determination of stockholders
entitled to receive such rights or warrants, then the Conversion Price in effect
immediately prior to the Ex-Date for such distribution will be multiplied by the
following fraction:
| OS0 + Y |
| OS0 + X |
Where,
| OS0 = | the number of shares of Common Stock outstanding immediately prior to the Ex-Date for such distribution. | |
| X = | the total number of shares of Common Stock issuable pursuant to such rights or warrants. | |
| Y = | the number of shares of Common Stock equal to the aggregate price payable to exercise such rights or warrants divided by the Current Market Price on the date fixed for the determination of stockholders entitled to receive such rights or warrants. |
For the purposes of this clause (iii), the number of shares of Common
Stock at the time outstanding shall not include shares acquired by the Company.
In the event that such rights or warrants described in this clause (iii) are not
so issued, the Conversion Price shall be readjusted, effective as of the date
the Board of Directors publicly announces its decision not to issue such rights
or warrants, to the Conversion Price that would then be in effect if such
issuance had not been declared. To the extent that such rights or warrants are
not exercised prior to their expiration or shares of Common Stock are otherwise
not delivered pursuant to such rights or warrants upon the exercise of such
rights or warrants, the Conversion Price shall be readjusted to such Conversion
Price that would then be in effect had the adjustment made upon the issuance of
such rights or warrants been made on the basis of the delivery of only the
number of shares of Common Stock actually delivered. In determining the
aggregate offering price payable for such shares of Common Stock, there shall be
taken into account any consideration received for such rights or warrants and
the value of such consideration (if other than cash, to be determined by the
Board of Directors).
-14-
(iv) Debt or Asset Distributions. If the Company distributes to all or
substantially all holders of shares of Common Stock evidences of indebtedness,
shares of capital stock, securities, cash or other assets (excluding any
dividend or distribution referred to in clause (i) above, any rights or warrants
referred to in clause (iii) above, any dividend or distribution paid exclusively
in cash, any consideration
payable in connection with a tender or exchange offer made by the Company or any
of its subsidiaries, and any dividend of shares of capital stock of any class or
series, or similar equity interests, of or relating to a subsidiary or other
business unit in the case of certain spin-off transactions as described below),
then the Conversion Price in effect immediately prior to the Ex-Date for such
distribution will be multiplied by the following fraction:
| SP0 – FMV |
| SP0 |
Where,
| SP0 = | the Current Market Price per share of Common Stock on the Trading Day immediately preceding the Ex-Date. | |
| FMV = | the fair market value of the portion of the distribution applicable to one share of Common Stock on such date as determined by the Board of Directors, provided that, if “FMV” as set forth above is equal to or greater than “SP0” as set forth above, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder shall receive on the date on which such distribution is made to holders of Common Stock, for each share of Preferred Stock, the amount of such distribution such Holder would have received had such holder owned a number of shares of Common Stock equal to the Base Value divided by the Applicable Conversion Price on the Ex-Date for such distribution. |
In a “spin-off”, where the Company makes a distribution to all holders of
shares of Common Stock consisting of capital stock of any class or series, or
similar equity interests of, or relating to, a subsidiary or other business
unit, the Conversion Price will be adjusted on the 15th Trading Day after the
effective date of the distribution by multiplying such Conversion Price in
effect immediately prior to such 15th Trading Day by the following fraction:
| MP0 |
| MP0 + MPS |
Where,
| MP0 = | the average of the Closing Prices of the Common Stock over the first ten Trading Days commencing on and including the fifth Trading Day following the effective date of such distribution. | |
| MPS = | the average of the Closing Prices of the capital stock or equity interests representing the portion of the distribution applicable to one share of Common Stock over the first ten Trading Days commencing on and including the fifth Trading Day following the effective date of such distribution, or, if not traded on a national or regional securities exchange or over-the-counter market, the fair market value of the capital stock or equity interests representing the portion of the distribution applicable to one share of Common Stock on such date as determined by the Board of Directors. |
-15-
In the event that such distribution described in this clause (iv) is not
so paid or made, the Conversion Price shall be readjusted, effective as of the
date the Board of Directors publicly announces its decision not to pay or make
such dividend or distribution, to the Conversion Price that would then be in
effect if such dividend or distribution had not been declared.
(v) Cash Distributions. If the Company makes a distribution
consisting exclusively of cash to all holders of the Common Stock, excluding (a)
any cash dividend on the Common Stock to the extent a corresponding cash
dividend is paid on the Series B Preferred Stock pursuant to Section 4(b), (b)
any cash that is distributed in a Reorganization Event or as part of a
“spin-off” referred to in clause (iv) above, (c) any dividend or distribution in
connection with the Company’s liquidation, dissolution or winding-up, and (d)
any consideration payable in connection with a tender or exchange offer made by
the Company or any of its subsidiaries, then in each event, the Conversion Price
in effect immediately prior to the Ex-Date for such distribution will be
multiplied by the following fraction:
| SP0 – DIV |
| SP0 |
Where,
| SP0 = | the Closing Price per share of Common Stock on the Trading Day immediately preceding the Ex-Date. | |
| DIV = | the amount per share of Common Stock of the cash distribution, as determined pursuant to the introduction to this paragraph (v). |
In the event that any distribution described in this clause (v) is not so
made, the Conversion Price shall be readjusted, effective as of the date the
Board of Directors publicly announces its decision not to pay such distribution,
to the Conversion Price which would then be in effect if such distribution had
not been declared.
Notwithstanding the foregoing, if “DIV” as set forth above is equal to or
greater than “SP0” as set forth above, in lieu of the foregoing adjustment,
adequate provision shall be made
so that each Holder shall have the right to receive on the date on which the
relevant cash dividend or distribution is distributed to holders of Common
Stock, for each share of Preferred Stock, the amount of cash such Holder would
have received had such Holder owned a number of shares of Common Stock equal to
the Base Value divided by the Applicable Conversion Price on the Ex-Date for
such distribution.
-16-
(vi) Self Tender Offers and Exchange
Offers. If the Company or
any of its subsidiaries successfully completes a tender or exchange offer for
the Common Stock where the cash and the value of any other consideration
included in the payment per share of the Common Stock exceeds the Closing Price
per share of the Common Stock on the Trading Day immediately succeeding the
expiration of the tender or exchange offer, then the Conversion Price in effect
at the close of business on such immediately succeeding Trading Day will be
multiplied by the following fraction:
| OS0 x SP0 |
| AC + (SP0 x OS1) |
Where,
| SP0 = | the Closing Price per share of Common Stock on the Trading Day immediately succeeding the expiration of the tender or exchange offer. | |
| OS0 = | the number of shares of Common Stock outstanding immediately prior to the expiration of the tender or exchange offer, including any shares validly tendered and not withdrawn. | |
| OS1 = | the number of shares of Common Stock outstanding immediately after the expiration of the tender or exchange offer. | |
| AC = | the aggregate cash and fair market value of the other consideration payable in the tender or exchange offer, as determined by the Board of Directors. |
In the event that the Company, or one of its subsidiaries, is obligated
to purchase shares of Common Stock pursuant to any such tender offer or exchange
offer, but the Company, or such subsidiary, is permanently prevented by
applicable law from effecting any such purchases, or all such purchases are
rescinded, then the Conversion Price shall be readjusted to be such Conversion
Price that would then be in effect if such tender offer or exchange offer had
not been made.
(vii) Rights Plans. To the extent that the Company has a rights
plan in effect with respect to the Common Stock on the Mandatory Conversion
Date, upon conversion of any shares of the Series B Preferred Stock, Holders
will receive, in addition to the shares of Common Stock, the rights under the
rights plan, unless, prior to the Mandatory Conversion Date, the rights have
separated from the shares of Common Stock, in which case the Conversion Price
will be adjusted at the time of separation as if the Company had made a
distribution to all holders of the Common Stock as described in clause (iv)
above, subject to readjustment in the event of the expiration, termination or
redemption of such rights.
-17-
(b) The Company may make such decreases in the Conversion Price, in addition
to any other decreases required by this Section 10, if the Board of Directors
deems it advisable to avoid or diminish any income tax to holders of the Common
Stock resulting from any dividend or distribution of shares of Common Stock (or
issuance of rights or warrants to acquire shares of Common Stock) or from any
event treated as such for income tax purposes or for any other reason.
(c) (i) All adjustments to the Conversion Price shall be calculated to the
nearest 1/10 of a cent. No adjustment in the Conversion Price shall be required
if such adjustment would be less than $0.01; provided that any
adjustments which by reason of this subparagraph are not required to be made
shall be carried forward and taken into account in any subsequent adjustment;
provided further that on the Mandatory Conversion Date
adjustments to the Conversion Price will be made with respect to any such
adjustment carried forward and which has not been taken into account before such
date.
(ii) No adjustment to the Conversion Price shall be made if Holders may
participate in the transaction that would otherwise give rise to an adjustment,
as a result of holding the Series B Preferred Stock (including without
limitation pursuant to Section 4(b) hereof), without having to convert the
Series B Preferred Stock, as if they held the full number of shares of Common
Stock into which a share of the Series B Preferred Stock may then be converted.
No single event shall be subject to adjustment under more than one subjection of
this Section 10 so as to result in duplication.
(iii) The Applicable Conversion Price shall not be adjusted:
(A) with respect to any Permitted Rights Offering or 382 Rights Plan;
provided that Holders of Series B Preferred Stock
participate in such distribution under such 382 Rights Plan as if their shares
of Series B Preferred Stock were converted into shares of Common Stock pursuant
to Section 8 hereof;
(B) upon the issuance of any shares of Common Stock pursuant to any present
or future plan providing for the reinvestment of dividends or interest payable
on the Company’s securities and the investment of additional optional amounts in
shares of Common Stock under any such plan;
(C) upon the issuance of any shares of Common Stock or rights or warrants to
purchase those shares pursuant to any present or future employee, director or
consultant benefit plan or program of or assumed by the Company or any of its
subsidiaries;
(D) upon the issuance of any shares of Common Stock pursuant to any option,
warrant, right or exercisable, exchangeable or convertible security outstanding
as of the date shares of the Series B Preferred Stock were first issued and not
substantially amended thereafter;
-18-
(E) for a change in the par value or no par value of Common Stock; or
(F) for accrued and unpaid dividends on the Series B Preferred Stock.
(d) Whenever the Conversion Price is to be adjusted in accordance with
Section 10(a) or Section 10(b), the Company shall: (i) compute the Conversion
Price in accordance with Section 10(a) or Section 10(b), taking into account the
one cent threshold set forth in Section 10(c) hereof; (ii) as soon as
practicable following the occurrence of an event that requires an adjustment to
the Conversion Price pursuant to Section 10(a) or Section 10(b), taking into
account the one percent threshold set forth in Section 10(c) hereof (or if the
Company is not aware of such occurrence, as soon as practicable after becoming
so aware), provide, or cause to be provided, a written notice to the Holders of
the occurrence of such event; and (iii) as soon as practicable following the
determination of the revised Conversion Price in accordance with Section 10(a)
or Section 10(b) hereof, provide, or cause to be provided, a written notice to
the Holders setting forth in reasonable detail the method by which the
adjustment to the Conversion Price was determined and setting forth the revised
Conversion Price.
Section 11. Reorganization Events. (a) In the event that, prior to the Mandatory Conversion Date with
respect to the shares of Series B Preferred Stock of any Holder, there occurs:
(i) any consolidation, merger or other similar business combination of the
Company with or into another Person, in each case pursuant to which the Common
Stock will be converted into cash, securities or other property of the Company
or another Person;
(ii) any sale, transfer, lease or conveyance to another Person of all or
substantially all of the property and assets of the Company, in each case
pursuant to which the Common Stock will be converted into cash, securities or
other property of the Company or another Person;
(iii) any reclassification of the Common Stock into securities including
securities other than the Common Stock; or
(iv) any statutory exchange of the outstanding shares of Common Stock for
securities of another Person (other than in connection with a merger or
acquisition);
(any such event
specified in this Section 11(a), a “Reorganization Event”) then, subject to Section 8(b), each share
of such Holder’s Series B Preferred Stock outstanding immediately prior to such
Reorganization Event shall remain outstanding but each Holder shall have the
right, at its option, subject to the terms and provisions of this Section 11, to
convert any or all of such Holder’s shares of Series B Preferred Stock,
effective as of the close of business on the Reorganization Conversion Date
(with the term “Regulatory Approval” applied for such purpose, as applicable, to
the surviving entity in such Reorganization Event and its securities included in
the Exchange Property (as defined below)), into the type and amount of
securities, cash and other property receivable in such Reorganization Event by
the Holder (other than a counterparty to the Reorganization Event or an
Affiliate of such counterparty) in respect of each such share of Series B
Preferred Stock equal to the number of shares of Common Stock into which one
share of Series B Preferred Stock would then be convertible assuming that a
Mandatory Conversion Date in respect of such shares of Series B Preferred Stock
had occurred (such securities, cash and other property, the “Exchange Property”).
-19-
(b) The conversion right of a Holder of Series B Preferred Stock pursuant to
this Section 11 shall be exercised by the Holder by the surrender of the
certificates representing the shares to be converted to the Company or to the
transfer agent for the Company, accompanied by a notice of reorganization
conversion, no later than the tenth day following the date of delivery to each
Holder of a notice from the Company of the expected consummation or the
consummation of a Reorganization Event.
(i) Immediately prior to the close of business on the Reorganization
Conversion Date, each converting Holder of Series B Preferred Stock shall be
deemed to be the Holder of record of the number of shares of Common Stock deemed
to be issuable upon conversion of such Holder’s Series B Preferred Stock in
accordance with clause (i) or (ii) of Section 11(a), notwithstanding that the
share register of the Company shall then be closed or that certificates
representing such Common Stock shall not then be actually delivered to such
Person.
(ii) Upon notice from the Company, each Holder of Series B Preferred Stock so
converted shall promptly surrender to the Company or its transfer agent
certificates representing the shares so converted (if not previously delivered),
duly endorsed in blank or accompanied by proper instruments of
transfer.
(c) In the event that holders of the shares of Common Stock have the
opportunity to elect the form of consideration to be received in connection with
any Reorganization Event, the Holders shall be entitled to the same right of
election as holders of the shares of Common Stock with respect to the form of
consideration to be received pursuant to this Section 11.
(d) The above provisions of this Section 11 shall similarly apply to
successive Reorganization Events and the provisions of Section 10 shall apply to
any shares of capital stock of the Company (or any successor) received by the
holders of the Common Stock in any such Reorganization Event.
(e) The Company (or any successor) shall, within seven days of the
consummation of any Reorganization Event, provide written notice to the Holders
of such consummation of such event and of the kind and amount of the cash,
securities or other property that constitutes the Exchange Property. Failure to
deliver such notice shall not affect the operation of this Section
11.
-20-
(f) The Company shall not enter into any agreement for a transaction
constituting a Reorganization Event unless such agreement provides for or does
not interfere with or prevent (as applicable) conversion of the Series B
Preferred Stock into the Exchange Property in a manner that is consistent with
and gives effect to this Section 11.
Section 12. Voting Rights. (a)
Holders will not have any voting rights, including the right to elect any
directors, except (i) voting rights, if any, required by law, and (ii) voting
rights, if any, described in this Section 12.
(b) So long as any shares of Series B Preferred Stock are outstanding, the
vote or consent of the Holders of three-quarters of the shares of Series B
Preferred Stock at the time outstanding voting as a single class with all other
classes and series of Parity Securities having similar voting rights then
outstanding, given in person or by proxy, either in writing without a meeting or
by vote at any meeting called for the purpose, will be necessary for effecting
or validating, whether or not such approval is required by Oregon law:
(i) any amendment or alteration (including by means of a merger,
consolidation or otherwise) of the Articles of Incorporation to authorize or
create, or increase the authorized amount of, any shares of, or any securities
convertible into shares of, any class or series of the Company’s capital stock
ranking prior to the Series B Preferred Stock in the payment of dividends or in
the distribution of assets on any liquidation, dissolution or winding-up of the
Company;
(ii) any amendment, alteration or repeal (including by means of a merger,
consolidation or otherwise) of any provision of the Articles of Incorporation
(including this Articles of Amendment) or the Bylaws that would significantly
and adversely alter or change the terms, rights, preferences or privileges of
the Series B Preferred Stock; or
(iii) the consummation of a binding share exchange or reclassification
involving the Series B Preferred Stock or a merger or consolidation of the
Company with another entity;
-21-
provided, however, that a
Holder will have no right to vote under this provision or under Oregon law if
such voting rights arise due to a Reorganization Event if (1) the Company shall
have complied with Section 11(f) or (2) in each case (a) the Series B Preferred
Stock remains outstanding or, in the case of any merger or consolidation with
respect to which the Company is not the surviving or resulting entity, is
converted into or exchanged for preference securities of the surviving or
resulting entity or its ultimate parent, that is an entity organized and
existing under the laws of the United States of America, any state thereof or
the District of Columbia, and (b) such Series B Preferred Stock remaining
outstanding or such preference securities, as the case may be, have such
rights (including, but not limited to, the right of conversion),
preferences, privileges and voting powers that, taken as a whole, as are not
materially less favorable to the Holders thereof than the rights, preferences,
privileges and voting powers of the Series B Preferred Stock, taken as a whole,
immediately prior to the Reorganization Event; provided further, that any increase in the amount of the
authorized Preferred Stock or any securities convertible into Preferred Stock or
the creation and issuance, or an increase in the authorized or issued amount, of
any series of Preferred Stock or any securities convertible into preferred stock
ranking equally with and/or junior to the Series B Preferred Stock with respect
to the payment of dividends (whether such dividends are cumulative or
non-cumulative) and/or the distribution of assets upon the Company’s
liquidation, dissolution or winding-up will not, in and of itself, be deemed to
affect the voting powers, preferences or special rights of the Series B
Preferred Stock and, notwithstanding any provision of Oregon law, Holders will
have no right to vote solely by reason of such an increase, creation or
issuance.
Each holder of Series B
Preferred Stock will have one vote per share on any matter on which holders of
Series B Preferred Stock are entitled to vote, including any action by written
consent.
If an amendment,
alteration, repeal, share exchange, reclassification, merger or consolidation
described above would adversely affect one or more but not all series of
Preferred Stock with like voting rights (including the Series B Preferred Stock
for this purpose), then only the series affected and entitled to vote shall vote
as a class in lieu of all such series of Preferred Stock.
(c) Notwithstanding the foregoing, Holders shall not have any voting rights
if, at or prior to the effective time of the act with respect to which such vote
would otherwise be required, all outstanding shares of Series B Preferred Stock
shall have been converted into shares of Common Stock.
Section 13. Fractional Shares.
(a) No fractional shares of Common Stock will be issued as a result of any
conversion of shares of Series B Preferred Stock.
(b) In lieu of any fractional share of Common Stock otherwise issuable in
respect of any mandatory conversion pursuant to Section 8 hereof, the Company
shall pay an amount in cash (computed to the nearest cent) equal to the same
fraction of the Closing Price of the Common Stock determined as of the second
Trading Day immediately preceding the Mandatory Conversion Date.
(c) If more than one share of the Series B Preferred Stock is surrendered for
conversion at one time by or for the same Holder, the number of full shares of
Common Stock issuable upon conversion thereof shall be computed on the basis of
the aggregate number of shares of the Series B Preferred Stock so surrendered.
-22-
Section
14. Reservation of Common Stock.
(a) Immediately following approval by stockholders of the increase in the
authorized number of shares of Common Stock as described in the Stockholder
Proposals, the Company shall at all times thereafter reserve and keep available
out of its authorized and unissued Common Stock or shares acquired by the
Company, solely for issuance upon the conversion of shares of Series B Preferred
Stock as provided in this Articles of Amendment, free from any preemptive or
other similar rights, such number of shares of Common Stock as shall from time
to time be issuable upon the conversion of all the shares of Series B Preferred
Stock then outstanding, assuming that the Applicable Conversion Price equaled
the Base Price.
(b) Notwithstanding the foregoing, the Company shall be entitled to deliver
upon conversion of shares of Series B Preferred Stock, as herein provided,
shares of Common Stock acquired by the Company (in lieu of the issuance of
authorized and unissued shares of Common Stock), so long as any such acquired
shares are free and clear of all liens, charges, security interests or
encumbrances (other than liens, charges, security interests and other
encumbrances created by the Holders).
(c) All shares of Common Stock delivered upon conversion of the Series B
Preferred Stock shall be duly authorized, validly issued, fully paid and
non-assessable, free and clear of all liens, claims, security interests and
other encumbrances (other than liens, charges, security interests and other
encumbrances created by the Holders).
(d) Prior to the delivery of any securities that the Company shall be
obligated to deliver upon conversion of the Series B Preferred Stock, the
Company shall use its reasonable best efforts to comply with all federal and
state laws and regulations thereunder requiring the registration of such
securities with, or any approval of or consent to the delivery thereof by, any
governmental authority.
(e) The Company hereby covenants and agrees that, if at any time the Common
Stock shall be listed on the NASDAQ Stock Market or any other national
securities exchange or automated quotation system, the Company will, if
permitted by the rules of such exchange or automated quotation system, list and
keep listed, so long as the Common Stock shall be so listed on such exchange or
automated quotation system, all the Common Stock issuable upon conversion of the
Series B Preferred Stock.
Section 15. Repurchases of Junior Securities or Trust Preferred
Securities. At any time
prior to the Approvals Date, for as long as the Series B Preferred Stock remains
outstanding, the Company shall not redeem, purchase or acquire, directly or
indirectly, any of its Junior Securities or trust preferred securities, other
than (i) redemptions, purchases or other acquisitions of Junior Securities in
connection with any benefit plan or other similar arrangement with or for the
benefit of any one or more employees, officers, directors or consultants or in
connection with a dividend reinvestment or stockholder stock purchase plan, (ii)
conversions into or exchanges for other Junior Securities and cash solely in
lieu of fractional shares of the Junior Securities, and (iii) as a result of
reclassification of Junior Securities for or into other Junior Securities.
-23-
Section 16. Replacement Certificates.
(a) The Company shall replace any mutilated certificate at the Holder’s
expense upon surrender of that certificate to the Company. The Company shall
replace certificates that become destroyed, stolen or lost at the Holder’s
expense upon delivery to the Company of satisfactory evidence that the
certificate has been destroyed, stolen or lost, together with any indemnity that
may be required by the Company.
Section 17. Miscellaneous.
(a) All notices referred to herein shall be in writing, and, unless otherwise
specified herein, all notices hereunder shall be deemed to have been given upon
the earlier of receipt thereof or three Business Days after the mailing thereof
if sent by registered or certified mail (unless first-class mail shall be
specifically permitted for such notice under the terms of this Articles of
Amendment) with postage prepaid, addressed: (i) if to the Company, to its office
at 5335 Meadows Road, Suite 201, Lake Oswego, Oregon 97035, Attention: Robert D.
Sznewajs, President and Chief Executive Officer, with a copy to the Company’s
legal department at 5335 Meadows Road, Suite 201, Lake Oswego, Oregon 97035,
Attention: Richard R. Rasmussen, Executive Vice President, General Counsel and
Secretary, or (ii) if to any Holder, to such Holder at the address of such
Holder as listed in the stock record books of the Company, or (iii) to such
other address as the Company or any such Holder, as the case may be, shall have
designated by notice similarly given.
(b) The Company shall pay any and all stock transfer and documentary stamp
taxes that may be payable in respect of any issuance or delivery of shares of
Series B Preferred Stock or shares of Common Stock or other securities issued on
account of Series B Preferred Stock pursuant hereto or certificates representing
such shares or securities. The Company shall not, however, be required to pay
any such tax that may be payable in respect of any transfer involved in the
issuance or delivery of shares of Series B Preferred Stock or Common Stock or
other securities in a name other than that in which the shares of Series B
Preferred Stock with respect to which such shares or other securities are issued
or delivered were registered, or in respect of any payment to any Person other
than a payment to the registered holder thereof, and shall not be required to
make any such issuance, delivery or payment unless and until the Person
otherwise entitled to such issuance, delivery or payment has paid to the Company
the amount of any such tax or has established, to the satisfaction of the
Company, that such tax has been paid or is not payable.
(c) No share of Series B Preferred Stock shall have any rights of preemption
whatsoever as to any securities of the Company, or any warrants, rights or
options issued or granted with respect thereto, regardless of how such
securities, or such warrants, rights or options, may be designated, issued or
granted.
The shares of Series B
Preferred Stock shall not have any voting powers, preferences or relative,
participating, optional or other special rights, or qualifications, limitations
or restrictions thereof, other than as set forth herein or in the Articles of
Incorporation or as provided by applicable law.
-24-
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
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
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 2 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 2, 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 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
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 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.
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.