1
EXHIBIT (4)(f)
THE LUBRIZOL CORPORATION
29400 Lakeland Boulevard
Wickliffe, Ohio 44092
October 28, 1991
National City Bank
1900 East Ninth Street
Cleveland, Ohio 44114
Attention: Corporate Trust Department
Re: Amendment No. 2 to Rights Agreement
Gentlemen:
Pursuant to Section 26 of the Rights Agreement, dated
as of October 6, 1987, between The Lubrizol Corporation, an
Ohio corporation (the "Company"), and National City Bank (the
"Rights Agent"), as amended by an Amendment to Rights
Agreement, dated October 24, 1988, between the Company and the
Rights Agent (as amended, the "Rights Agreement"), the Company,
by resolutions adopted by the unanimous vote of its Board of
Directors, hereby amends the Rights Agreement as follows (this
Amendment No. 2 to Rights Agreement is hereinafter referred to
as "this Amendment"):
1. To amend clause (ii) of the Recitals to read in its
entirety as follows:
"(ii) the Expiration Date, or"
2. To amend Section 1(a) to add the following at the end of
Section 1(a):
"; and provided, further, that a Person shall not be deemed to
have become an Acquiring Person solely as a result of a
reduction in the number of Common Shares outstanding unless and
until (i) such time as such Person or any Affiliate or
Associate of such Person shall thereafter become the Beneficial
Owner of any additional Common Shares, other than as a result
of a stock dividend, stock split or similar transaction
effected by the Company in which all holders of Common Shares
are treated equally, or (ii) any other Person who is the
2
2
Beneficial Owner of any Common Shares shall thereafter become
an Affiliate or Associate of such Person."
3. To renumber Sections 1(i) and 1(j) as Sections 1(m) and
1(n), respectively, to reflect the addition of Sections l(i),
1(j), 1(k), 1(l) and 1(o) pursuant to item 5 of this Amendment.
4. To renumber Sections 1(k) and 1(1) as Sections 1(p) and
1(q), respectively, to reflect the addition of Section 1(o)
pursuant to item 5 of this Amendment.
5. To add new Sections 1(i), 1(j), 1(k), 1(l), 1(o) and 1(r)
to read in their entirety as follows:
"(i) "Distribution Date" shall have the meaning ascribed to
such term in Section 3 hereof.
(j) "Expiration Date" shall mean the earlier of (i) the
date on which the Rights are redeemed as provided in Section 23
hereof or (ii) the time at which all exercisable Rights are
exchanged as provided in Section 11(p) hereof.
(k) "Flip-In Event" shall mean any event described in
clauses (A), (B) or (C) of Section 11(a)(ii) hereof.
(l) "Flip-Over Event" shall mean any event described in
clauses (i), (ii) or (iii) of Section 11(d) hereof.
(o) "Redemption Price" shall mean $.05 per Right,
appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date hereof.
(r) "Triggering Event" shall mean any Flip-In Event or
Flip-Over Event.
6. To amend the first sentence of Section 3(a) to read in its
entirety as follows:
"Until the earliest of (i) the Close of business on the
tenth Business Day (or, unless the Distribution Date shall have
previously occurred, such later date as may be specified by the
Directors of the Company) after the Share Acquisition Date,
(ii) the Close of business on the tenth Business Day (or,
unless the Distribution Date shall have previously occurred,
such later date as may be specified by the Directors of the
Company) after the date of the commencement of a tender or
exchange offer by any Person (other than the Company or any
Subsidiary or any employee benefit or stock ownership plan of
the Company or of any Subsidiary or any entity holding Common
Shares for or pursuant to the terms of any such plan), if upon
the consummation thereof such Person would be the Beneficial
Owner of 20% or more of the outstanding Common Shares, and
3
3
(iii) the Close of business on the tenth Business Day after the
first date of public announcement by the Company or an
Acquiring Person (by press release, filing made with the
Securities and Exchange Commission or otherwise) of the first
occurrence of a Triggering Event (the earliest of such dates
being herein referred to as the "Distribution Date"), the
Rights will be evidenced (subject to the provisions of
paragraph (b) of this Section 3) by the certificates for Common
Shares registered in the names of the record holders thereof
(which certificates for Common Shares shall also be deemed to
be Right Certificates) and not by separate Right Certificates,
and the right to receive Right Certificates will be
transferable only in connection with the transfer of Common
Shares in the stock transfer books of the Company maintained by
the Company or its appointed transfer agent."
7. To amend the last sentence of Section 3(a) to delete the
following clause:
"Section 11(a)(ii) or Section 11(d)"
8. To amend the second sentence of Section 4 to delete the
following clause:
"shall be dated as of the Record Date, and"
9. To amend Section 7(a) to read in its entirety as follows:
"(a) The registered holder of any Right Certificate may
exercise the Rights evidenced thereby (except as otherwise
provided herein) in whole or in part at any time after the
Distribution Date and at or prior to the Close of business on
the earlier of the Expiration Date or the Final Expiration Date
upon surrender of the Right Certificate, with the form of
election to purchase on the reverse side thereof duly executed,
to the Rights Agent at an office of the Rights Agent designated
for such purpose, together with an amount in cash, in lawful
money of the United States of America, by certified check or
bank draft payable to the order of the Company, equal to the
Purchase Price for each Common Share as to which such
surrendered Rights are exercised, or, if applicable, the
exercise price per Right specified in Sections 11(a)(ii) or
11(d) hereof, as the case may be, together with an amount equal
to any applicable transfer tax required to be paid by the
holder of such Right Certificate in accordance with Section 9
hereof; provided, however, that after the later of the first
occurrence of a Triggering Event and the Distribution Date, in
lieu of the cash payment payable to the Company referred to in
this sentence, the registered holder of a Right Certificate
evidencing exercisable Rights (which shall not include Rights
that have become void pursuant to Section 11(a)(ii) hereof)
may, at its option, exercise the Rights evidenced thereby in
whole or in part in accordance with this Section 7(a) upon
4
4
surrender of the Right Certificate as described above, together
with the election to exercise such Rights without payment of
cash on the reverse side thereof duly completed. With respect
to any Rights as to which such an election to exercise without
payment of cash is made, the holder shall receive, upon
exercise, a number of Common Shares or other securities, as the
case may be, having a current per share market price
(determined pursuant to Section 11(e) hereof as of the date of
the first occurrence of any Triggering Event) equal to the
excess of (i) the aggregate current per share market price of
the Common Shares or other securities (determined pursuant to
Section 11(e) hereof as of the date of the first occurrence of
any Triggering Event) that would have been issuable upon
payment of the cash amount as described above over (ii) the
amount of cash that would have been payable to the Company upon
exercise absent such election."
10. To amend Section 7(b) to read in its entirety as follows:
"(b) The Purchase Price for each Common Share pursuant to
exercise of a Right shall initially be $150 (equivalent to $75
for each one-half of a Common Share), and shall be subject to
adjustment from time to time as provided in Section 11 hereof."
11. To amend Section 7(c) to read in its entirety as follows:
"(c) Subject to Sections 7(d), 11(a)(ii), and 11(d) hereof,
upon receipt of a Right Certificate representing exercisable
Rights with the form of election to purchase duly executed,
accompanied by either payment as described above or a duly
completed election to exercise without payment of cash, the
Rights Agent shall promptly (i) requisition from any transfer
agent of the Common Shares (or make available, if the Rights
Agent is the transfer agent) certificates representing the
number of whole Common Shares to be purchased and the Company
hereby irrevocably authorizes its transfer agent to comply with
all such requests, (ii) promptly after receipt of such
certificates, cause the same to be delivered to or upon the
order of the registered holder of such Right Certificate,
registered in such name or names as may be designated by such
holder, (iii) if appropriate, requisition from the Company the
amount of cash to be paid or depository receipts to be issued
in lieu of the issuance of fractional shares in accordance with
Section 14 hereof or in lieu of the issuance of Common Shares
in accordance with Section 11(a)(iii) or 11(d) hereof, and (iv)
if appropriate, after receipt, promptly deliver such cash (or
depository receipts, when appropriate) to or upon the order of
the registered holder of such Right Certificate."
12. To add new Section 7(e) to read in its entirety as follows:
"(e) Notwithstanding anything in this Agreement to the
contrary, neither the Rights Agent nor the Company shall be
5
5
obligated to undertake any action with respect to any purported
transfer, split up, combination or exchange of any Right
Certificate pursuant to Section 6 hereof or exercise of a Right
Certificate as set forth in this Section 7 unless the
registered holder of such Right Certificate shall have
(i) completed and signed the certificate following the form of
assignment or the form of election to purchase, as applicable,
set forth on the reverse side of the Right Certificate
surrendered for such transfer, split up, combination, exchange
or exercise and (ii) provided such additional evidence of the
identity of the Beneficial Owner (or former Beneficial Owner)
or Affiliates or Associates thereof as the Company shall have
reasonably requested."
13. To amend paragraph 3 of Section 9 to add at the end of the
parenthetical that reads "subject to payment of the Purchase
Price" the following:
"if required"
14. To amend Section 9 to add the following at the end of
Section 9:
"The Company further consents and agrees to use its best
efforts to (i) file on an appropriate form, as soon as
practicable following the later to occur of a Triggering Event
or the Distribution Date, a registration statement under the
Securities Act of 1933, as amended (the "Securities Act"), with
respect to the securities issuable upon exercise of the Rights,
(ii) cause such registration statement to become effective as
soon as practicable after such filing, and (iii) cause such
registration statement to remain effective (with a prospectus
at all times meeting the requirements of the Securities Act)
until the earliest of (A) the date as of which the Rights are
no longer exercisable for such securities, (B) the Expiration
Date, and (C) the Final Expiration Date. The Company will also
take such action as may be appropriate under, or to ensure
compliance with, the securities or "blue sky" laws of the
various states in connection with the exercisability of the
Rights. The Company may temporarily suspend the exercisability
of the Rights in order to prepare and file such registration
statement and permit it to become effective and upon any such
suspension, the Company will issue a public announcement
stating that the exercisability of the Rights has been
temporarily suspended, as well as a public announcement at such
time as the suspension is no longer in effect. Notwithstanding
anything in this Agreement to the contrary, the Rights shall
not be exercisable in any jurisdiction if the requisite
registration or qualification in such jurisdiction shall not
have been effected or the exercise of the Rights shall not be
permitted under applicable law.
Notwithstanding anything in this Agreement to the contrary,
the Company covenants and agrees that, after the Distribution
6
6
Date, it will not, except as permitted by Section 23 or Section
26 hereof, take any action if at the time such action is taken
it is reasonably foreseeable that such action will diminish or
otherwise eliminate the benefits intended to be afforded by the
Rights.
In the event that the Company is obligated to pay cash
and/or distribute other property pursuant to Sections 11, 13,
and 14 hereof, it will make all arrangements necessary so that
such cash and/or property are available for distribution by the
Rights Agent, if and when appropriate."
15. To amend the first sentence of Section 10 to add at the end
of the clause that reads "payment of the Purchase Price" the
following:
"if required"
16. To amend clause (C) of Section 11(a)(ii) to add at the end
of clause C of Section 11(a)(ii) the following:
"; provided, however, that a Person shall not be deemed to have
become the Beneficial Owner of 20% or more of the Common Shares
then outstanding for the purposes of this Section 11(a)(ii)(C)
solely as a result of a reduction in the number of Common
Shares outstanding unless and until such time as (1) such
Person or any Affiliate or Associate of such Person shall
thereafter become the Beneficial Owner of any additional Common
Shares other than as a result of a stock dividend, stock split
or similar transaction effected by the Company in which all
holders of Common Shares are treated equally, or (2) any other
Person who is the Beneficial Owner of any Common Shares shall
thereafter become an Affiliate or Associate of such Person,"
17. To amend Section 11(a)(ii) by deleting the language
following Section 11(a)(ii) (C) (as amended pursuant to item 16
of this Amendment) in its entirety and replacing such language
with the following:
"then, and in each such case, the Company shall make
adjustments in the terms of the Rights so that each holder of a
Right, except as provided below, shall thereafter have a right
to receive, upon exercise thereof in accordance with the terms
of this Agreement, at an exercise price per Right equal to the
product of two times the then-current Purchase Price multiplied
by the number of Common Shares for which a Right was
exercisable immediately prior to the first occurrence of a
Triggering Event, such number of Common Shares as shall equal
the result obtained by (x) multiplying the product of two times
the then-current Purchase Price by the number of Common Shares
for which a Right was exercisable immediately prior to the
first occurrence of a Triggering Event and dividing that
product by (y) 50% of the current per share market price of the
7
7
Common Shares (determined pursuant to Section 11(e) hereof) on
the date of the first occurrence of a Triggering Event.
Notwithstanding anything in this Agreement to the contrary,
from and after the later of the Distribution Date and the first
occurrence of a Flip-In Event, (1) any Rights that are or were
acquired or beneficially owned by any Acquiring Person (or any
Affiliate or Associate of such Acquiring Person) shall be void
and any holder of such Rights shall thereafter have no right to
exercise such Rights under any provision of this Agreement,
(2) no Right Certificate shall be issued pursuant to this
Agreement that represents Rights that are beneficially owned by
an Acquiring Person or any Affiliate or Associate thereof,
(3) no Right Certificate shall be issued at any time upon the
transfer of any Rights to an Acquiring Person or any Affiliate
or Associate thereof or to any nominee of such Acquiring Person
or Affiliate or Associate thereof, and (4) any Right
Certificate delivered to the Rights Agent for transfer to an
Acquiring Person or any Affiliate or Associate thereof shall be
cancelled. Notwithstanding anything to the contrary set forth
herein, the provisions of this Section 11(a)(ii) shall not
apply to any Permitted Transaction."
18. To amend Section 11(a)(iii) to read in its entirety as
follows:
"(iii) Upon the occurrence of a Flip-In Event, if
there shall not be sufficient authorized but unissued
Common Shares or authorized and issued Common Shares held
in treasury to permit the exercise in full of the Rights in
accordance with the foregoing subsection (ii), the
Directors of the Company shall use their best efforts
promptly to authorize and, subject to the provisions of
Section 9 hereof, make available for issuance additional
Common Shares; provided, however, that if at any time after
90 calendar days after the first occurrence of a Flip-In
Event, there shall not be sufficient Common Shares
available for issuance upon the exercise of a Right, then
the Company shall deliver, upon the surrender of such Right
and without requiring payment of the Purchase Price, Common
Shares (to the extent available), and then cash (to the
extent permitted by applicable law and any agreements or
instruments to which the Company is a party in effect
immediately prior to the first occurrence of any Flip-In
Event), which Common Shares and cash shall have an
aggregate value equal to the excess of (x) the aggregate
current per share market price (determined pursuant to
Section 11(e) hereof) of all the Common Shares issuable in
accordance with subsection (ii) of this Section 11(a) upon
the exercise of a Right over (y) the product of the
then-current Purchase Price multiplied by the number of
Common Shares for which a Right was exercisable immediately
prior to the first occurrence of a Triggering Event. To
the extent that any legal or contractual restrictions
8
8
prevent the Company from paying the full amount of cash
payable in accordance with the foregoing sentence, the
Company shall pay to holders of the Rights as to which such
payments are being made all amounts which are not then
restricted on a pro rata basis. The Company shall continue
to make payments on a pro rata basis as funds become
available until such payments have been paid in full."
19. To amend Section 11(d) to read in its entirety as follows:
"(d) In the event that, following the Share
Acquisition Date, directly or indirectly:
(i) the Company shall consolidate with, or merge
with or into, any other Person and the Company shall
not be the continuing or surviving corporation of such
merger or consolidation; or
(ii) any Person shall consolidate with the
Company, or merge with or into the Company and the
Company shall be the continuing or surviving
corporation of such merger or consolidation and, in
connection with such merger or consolidation, all or
part of the Common Shares shall be changed into or
exchanged for stock or other securities of any other
Person or cash or any other property; or
(iii) the Company shall sell or otherwise transfer
(or one or more of its Subsidiaries shall sell or
otherwise transfer), in one or more transactions,
assets or earning power (including, without
limitation, securities creating any obligation on the
part of the Company and/or any of its Subsidiaries)
representing in the aggregate more than 50% of the
assets or earning power of the Company and its
Subsidiaries (taken as a whole) to any Person or
Persons;
then, and in each such case, proper provision shall be made
so that (A) each holder of a Right (except as otherwise
provided herein) shall thereafter have the right to
receive, upon the exercise thereof in accordance with the
terms of this Agreement at an exercise price per Right
equal to the product of two (2) times the then-current
Purchase Price multiplied by the number of Common Shares
for which a Right was exercisable immediately prior to the
first occurrence of a Triggering Event, such number of
validly authorized and issued, fully paid, nonassessable
and freely tradeable Common Shares of the Issuer (as such
term is hereinafter defined), free and clear of any liens,
encumbrances and other adverse claims and not subject to
any rights of call or first refusal, as shall be equal to
the result obtained by (x) multiplying the product of two
9
9
(2) times the then-current Purchase Price by the number of
Common Shares for which a Right is exercisable immediately
prior to the first occurrence of a Triggering Event and
dividing that product by (y) 50% of the current per share
market price of the Common Shares of the Issuer (determined
pursuant to Section 11(e) hereof), on the date of
consummation of such Flip-Over Event; (B) the Issuer shall
thereafter be liable for, and shall assume, by virtue of
the consummation of such Flip-Over Event, all the
obligations and duties of the Company pursuant to this
Agreement; (C) the term "Company" shall thereafter be
deemed to refer to the Issuer; and (D) the Issuer shall
take such steps (including, without limitation, the
reservation of a sufficient number of its Common Shares to
permit the exercise of all outstanding Rights) in
connection with such consummation as may be necessary to
assure that the provisions hereof shall thereafter be
applicable, as nearly as reasonably may be possible, in
relation to its Common Shares thereafter deliverable upon
the exercise of the Rights. For purposes of this
Section 11(d), "Issuer" shall mean (A) in the case of any
Flip-Over Event described in Sections 11(d)(i) or (ii)
above, the Person that is the continuing, surviving,
resulting or acquiring Person (including the Company as the
continuing or surviving corporation of a transaction
described in Section 11(d)(ii) above), and (B) in the case
of any Flip-Over Event described in Section 11(d)(iii)
above, the Person that is the party receiving the greatest
portion of the assets or earning power (including, without
limitation, securities creating any obligation on the part
of the Company and/or any of its Subsidiaries) transferred
pursuant to such transaction or transactions; provided,
however, that, in any such case, (x) if (1) no class of
equity security of such Person is, at the time of such
merger, consolidation or transaction and has been
continuously over the preceding 12-month period, registered
pursuant to Section 12 of the Exchange Act, and (2) such
Person is a Subsidiary, directly or indirectly, of another
Person, a class of equity security of which is and has been
so registered, the term "Issuer" shall mean such other
Person; and (y) in case such Person is a Subsidiary,
directly or indirectly, of more than one Person, a class of
equity security of two or more of which are and have been
so registered, the term "Issuer" shall mean whichever of
such Persons is the issuer of the equity security having
the greatest aggregate market value. Notwithstanding the
foregoing, if the Issuer in any of the Flip-Over Events
listed above is not a corporation or other legal entity
having outstanding equity securities, then, and in each
such case, (A) if the Issuer is directly or indirectly
wholly owned by a corporation or other legal entity having
outstanding equity securities, then all references to
Common Shares of the Issuer shall be deemed to be
10
10
references to the Common Shares of the corporation or other
legal entity having outstanding equity securities which
ultimately controls the Issuer, and (B) if there is no such
corporation or other legal entity having outstanding equity
securities, (1) proper provision shall be made so that the
Issuer shall create or otherwise make available for
purposes of the exercise of the Rights in accordance with
the terms of this Agreement, a kind or kinds of security or
securities having a fair market value at least equal to the
economic value of the Common Shares which each holder of a
Right would have been entitled to receive if the Issuer had
been a corporation or other legal entity having outstanding
equity securities; and (2) all other provisions of this
Agreement shall apply to the issuer of such securities as
if such securities were Common Shares. The Company shall
not consummate any Flip-Over Event unless the Issuer shall
have a sufficient number of authorized Common Shares (or
other securities as contemplated above) which have not been
issued or reserved for issuance to permit the exercise in
full of the Rights in accordance with this Section 11(d),
and unless prior to such consummation the Company and the
Issuer shall have executed and delivered to the Rights
Agent a supplemental agreement providing for the terms set
forth in Section 11(d) and further providing that as
promptly as practicable after the consummation of any
Flip-Over Event, the Issuer shall:
(A) prepare and file a registration statement
under the Securities Act, with respect to the Rights
and the securities issuable upon exercise of the
Rights on an appropriate form, and shall use its best
efforts to cause such registration statement to
(1) become effective as soon as practicable after such
filing and (2) remain effective (with a prospectus at
all times meeting the requirements of the Securities
Act) until the earlier of the Expiration Date and the
Final Expiration Date;
(B) take all such action as may be appropriate
under, or to ensure compliance with, the securities or
"blue sky" laws of the various states in connection
with the exercisability of the Rights; and
(C) deliver to holders of the Rights historical
financial statements for the Issuer and each of its
Affiliates which comply in all respects with the
requirements for registration on Form 10 (or any
successor form) under the Exchange Act.
The provisions of this Section 11(d) shall similarly apply
to successive mergers or consolidations or sales or other
transfers. In the event that a Flip-Over Event occurs at
any time after the occurrence of a Flip-In Event, the
11
11
Rights which have not theretofore been exercised shall
thereafter become exercisable in the manner described in
this Section 11(d).
In the event that the Company shall be the continuing
or surviving corporation in a merger or consolidation
referred to in subparagraph (ii) above and Common Shares of
the Company are required to be issued upon exercise of the
Rights following such merger or consolidation, and if there
shall not be sufficient authorized but unissued Common
Shares or authorized and issued Common Shares held in
treasury to permit the exercise in full of the Rights in
accordance with the foregoing, the Directors of the Company
shall use their best efforts promptly to authorize and,
subject to the provisions of Section 9 hereof, make
available for issuance additional Common Shares; provided,
however, that if at any time after 90 calendar days after
the first occurrence of a Flip-In Event, there shall not be
sufficient Common Shares available for issuance upon the
exercise of a Right, then the Company shall deliver, upon
the surrender of such Right and without requiring payment
of the Purchase Price, Common Shares (to the extent
available), and then cash (to the extent permitted by
applicable law and any agreements or instruments to which
the Company is a party in effect immediately prior to the
first occurrence of any Flip-In Event), which Common Shares
and cash shall have an aggregate value equal to the excess
of (x) the aggregate current per share market price
(determined pursuant to Section 11(e) hereof) of all the
Common Shares issuable in accordance with this Section
11(d) upon the exercise of a Right over (y) the product of
the then-current Purchase Price multiplied by the number of
Common Shares for which a Right was exercisable immediately
prior to the occurrence of the merger or consolidation
referred to in subparagraph (ii) above. To the extent that
any legal or contractual restrictions prevent the Company
from paying the full amount of cash payable in accordance
with the foregoing sentence, the Company shall pay to
holders of the Rights as to which such payments are being
made all amounts which are not then restricted on a pro
rata basis. The Company shall continue to make payments on
a pro rata basis as funds become available until such
payments have been paid in full."
20. To amend Section 11(o) to replace the clause "shares of
Common Stock" with the following:
"Common Shares"
21. To add new Section 11(p) to read in its entirety as follows:.
"(p) Notwithstanding the provisions of Sections 11(a)
(ii) and 11(d) hereof, the Directors of the Company may, at
12
12
their option, at any time after the later of the
Distribution Date and the first occurrence of a Triggering
Event, exchange all or part of the then-outstanding and
exercisable Rights (which shall not include Rights that
have become void pursuant to the provisions of
Section 11(a)(ii) hereof) for Common Shares at an exchange
ratio of one Common Share per Right, appropriately adjusted
to reflect any stock split, stock dividend or similar
transaction occurring after the date hereof (such exchange
ratio being hereinafter referred to as the "Exchange
Ratio"). Notwithstanding the foregoing, the Directors of
the Company shall not be empowered to effect such exchange
at any time after any Person (other than the Company or any
Subsidiary or any employee benefit plan of the Company or
of any Subsidiary or any entity holding Common Shares for
or pursuant to the terms of any such plan) together with
all Affiliates and Associates of such Person, becomes the
Beneficial Owner of 50% or more of the Common Shares then
outstanding. Immediately upon the action of the Directors
of the Company ordering the exchange of any Rights pursuant
to this Section 11(p), and without any further action and
without any notice, the right to exercise such Rights shall
terminate and the only right with respect to such Rights
thereafter of the holder of such Rights shall be to receive
that number of Common Shares equal to the number of such
Rights held by such holder multiplied by the Exchange
Ratio. Promptly after the action of the Directors of the
Company ordering the exchange of any Rights pursuant to
this Section 11(p), the Company shall publicly announce
such action, and within 10 calendar days thereafter shall
give notice of any such exchange to all of the holders of
such Rights at their last addresses as they appear upon the
registry books of the Rights Agent; provided, however, that
the failure to give, or any defect in, such notice shall
not affect the validity of such exchange. Any notice which
is mailed in the manner herein provided shall be deemed
given, whether or not the holder receives the notice. Each
such notice of exchange shall state the method by which the
exchange of the Common Shares for Rights will be effected
and, in the event of any partial exchange, the number of
Rights which will be exchanged. Any partial exchange shall
be effected pro rata based on the number of Rights (other
than Rights which have become void pursuant to the
provisions of Section 11(a)(ii)) held by each holder of
Rights. In any exchange pursuant to this Section 11(p),
the Company, at its option, may substitute for any Common
Share exchangeable for a Right, (i) cash, (ii) debt
securities of the Company, (iii) other assets, or (iv) any
combination of the foregoing, in any event having an
aggregate value which the Directors of the Company shall
have determined in good faith to be equal to the current
per share market price of one Common Share (determined
pursuant to Section 11(e) hereof) on the Trading Day
13
13
immediately preceding the date of exchange pursuant to this
Section 11(p). The Company shall not be required to issue
fractions of Common Shares or to distribute certificates
which evidence fractional Common Shares upon the exchange
of a Right. In lieu of such fractional Common Shares, the
Company shall pay to the registered holders of the Right
Certificates with regard to which such fractional Common
Shares would otherwise be issuable an amount in cash equal
to the same fraction of the current per share market price
of a whole Common Share (determined pursuant to Section
11(e) hereof) on the Trading Day immediately preceding the
date of exchange pursuant to this Section 11(p)."
22. To amend Section 17 to add at the end of the first sentence
thereof the following:
"or exchanged pursuant to the provisions of Section 11(p)
hereof"
23. To amend Section 23(a) to read in its entirety as follows:
"(a) Prior to the earlier of the Expiration Date and
the Final Expiration Date, the Directors of the Company
may, at their option, redeem all but not less than all of
the then-outstanding Rights at the Redemption Price at any
time prior to the Close of business on the later of (i) the
Distribution Date and (ii) the Share Acquisition Date."
24. To delete Sections 23(b) and 23(f) in their entirety, and
to renumber Sections 23(c), 23(d) and 23(e) as Sections 23(b),
23(c) and 23(d), respectively.
25. To delete the last two sentences of Section 23(c) (as
renumbered by item 24 of this Amendment) and to add at the end
of Section 23(c) the following:
"; provided, however, that the failure to give, or any
defect in, any such notice shall not affect the validity of
the redemption of the Rights. Any notice which is mailed
in the manner herein provided shall be deemed given,
whether or not the holder receives the notice. The notice
of redemption mailed to the holders of Rights shall state
the method by which the payment of the Redemption Price
will be made. The Company may, at its option, pay the
Redemption Price in cash, Common Shares (based upon the
current per share market price of the Common Shares
(determined pursuant to Section 11(e) hereof) at the time
of redemption) or any other form of consideration deemed
appropriate by the Directors of the Company (based upon the
fair market value of such other consideration, determined
by the Directors of the Company in good faith) or any
combination thereof."
14
14
26. To amend Section 23(d) (as renumbered by item 24 of this
Amendment) to replace the clause "paragraphs (a) or (b) above,
or both," with the following:
"paragraph (a) above"
27. The form of Right Certificate attached as Exhibit A to the
Rights Agreement and the form of Summary of Rights attached as
Exhibit B to the Rights Agreement are hereby amended to reflect
the provisions of this Amendment.
28. This Amendment is effective as of October 28, 1991, and all
references to the Rights Agreement shall, as of such date, be
deemed to be references to the Rights Agreement, as amended by
this Amendment.
Very truly yours,
THE LUBRIZOL CORPORATION
By:
Name: L. E. Coleman
Title: Chairman & CEO
Agreed to and Accepted:
NATIONAL CITY BANK
By:
Name:
Title: