exv4w1



 




Exhibit 4.1
 




 

 








USG Corporation




Reorganization Rights Plan




Dated as of January 30, 2006




 

 






 









 





TABLE OF CONTENTS



	 	 	 	 	 	 	 
	1.	 	Certain Definitions
	 	 	1	 
	2.	 	Appointment of Rights Agent
	 	 	6	 
	3.	 	Issue of Right Certificates
	 	 	6	 
	4.	 	Form of Right Certificates
	 	 	8	 
	5.	 	Countersignature and Registration
	 	 	8	 
	6.	 	Transfer, Split Up, Combination and Exchange of Right Certificates; Mutilated, Destroyed, Lost or Stolen Right Certificates
	 	 	8	 
	7.	 	Exercise of Rights; Purchase Price; Expiration Date of Rights
	 	 	9	 
	8.	 	Cancellation and Destruction of Right Certificates
	 	 	10	 
	9.	 	Company Covenants Concerning Securities and Rights
	 	 	11	 
	10.	 	Record Date
	 	 	12	 
	11.	 	Adjustment of Purchase Price, Number and Kind of Securities or Number of Rights
	 	 	12	 
	12.	 	Certificate of Adjusted Purchase Price or Number of Securities
	 	 	20	 
	13.	 	Consolidation, Merger or Sale or Transfer of Assets or Earning Power
	 	 	20	 
	14.	 	Fractional Rights and Fractional Securities
	 	 	23	 
	15.	 	Rights of Action
	 	 	24	 
	16.	 	Agreement of Rights Holders
	 	 	25	 
	17.	 	Right Certificate Holder Not Deemed a Stockholder
	 	 	25	 
	18.	 	Concerning the Rights Agent
	 	 	26	 
	19.	 	Merger or Consolidation or Change of Name of Rights Agent
	 	 	26	 
	20.	 	Duties of Rights Agent
	 	 	27	 
	21.	 	Change of Rights Agent
	 	 	28	 
	22.	 	Issuance of New Right Certificates
	 	 	29	 
	23.	 	Redemption
	 	 	29	 
	24.	 	Exchange
	 	 	30	 
	25.	 	Notice of Certain Events
	 	 	31	 
	26.	 	Notices
	 	 	32	 
	27.	 	Supplements and Amendments
	 	 	32	 
	28.	 	Successors; Certain Covenants
	 	 	33	 
	29.	 	Benefits of This Agreement
	 	 	33	 
	30.	 	Governing Law
	 	 	33	 
	31.	 	Severability
	 	 	33	 






 









 






	 	 	 	 	 	 	 
	32.	 	Descriptive Headings, Etc
	 	 	34	 
	33.	 	Determinations and Actions by the Board
	 	 	34	 
	34.	 	Counterparts
	 	 	34	 
	Exhibit A	 	 	A-1	 






(ii)









 






REORGANIZATION RIGHTS PLAN




     This Agreement, dated as of January 30, 2006, adopted by USG Corporation, a Delaware
corporation (the “Company”), with the Person identified on the signature page hereof, as Rights
Agent (the “Rights Agent”) establishes the Company’s Reorganization Rights Plan.



RECITALS




     WHEREAS, on January 29, 2006 (the “Adoption Date”), the Board of Directors of the
Company authorized and declared a dividend distribution of one right (a “Right”) for each share of
common stock, par value $0.10 per share, of the Company (a “Common Share”) outstanding as of the
Close of Business (as hereinafter defined) on February 9, 2006 (the “Record Date”), each
Right initially representing the right to purchase one one-hundredth of a Preferred Share (as
hereinafter defined), on the terms and subject to the conditions herein set forth, and further
authorized and directed the issuance of one Right (subject to adjustment as provided herein) with
respect to each Common Share issued or delivered by the Company (whether originally issued or
delivered from the Company’s treasury) after the Record Date but prior to the earlier of the
Distribution Date (as hereinafter defined) and the Expiration Date (as hereinafter defined) or as
provided in Section 22.



     NOW, THEREFORE, in consideration of the mutual agreements herein set forth, the parties hereto
hereby agree as follows:



     1. Certain Definitions. For purposes of this Agreement, the following terms have the
meanings indicated:



     (a) “Acquiring Person” means any Person (other than the Company, any Related Person, any
Restricted Person or any Exempt Person) who or which, together with all controlled Affiliates and
Associates of such Person, is the Beneficial Owner of 5% or more of the then-outstanding Common
Shares; provided, however, that (i) any Person who would otherwise qualify as an
Acquiring Person as of the Close of Business on the Adoption Date (including any Person that would
otherwise qualify as an Acquiring Person but for being a Restricted Person on such date, or by
reason of any agreement, arrangement or understanding (whether or not in writing) or regular-way
purchase order for Common Shares that is in effect prior to the Adoption Date and confirmed or
consummated after the Adoption Date) will not be deemed to be an Acquiring Person for any purpose
of this Agreement prior to, or after such date unless and until such time as (A) such Person or any
controlled Affiliate or Associate of such Person thereafter becomes by reason of a subsequent
transaction the Beneficial Owner of additional Common Shares representing 1% or more of the Common
Shares outstanding as of the Close of Business on the Adoption Date, other than as a result of a
stock dividend, rights dividend, stock split or similar transaction effected by the Company in
which all holders of Common Shares are treated equally, or (B) any other Person who is the
Beneficial Owner of Common Shares representing 1% or more of the Common Shares outstanding as of
the Close of Business on the Adoption Date thereafter becomes a controlled Affiliate or Associate
of such Person, provided that the foregoing exclusion shall cease to apply with respect to
any Person at such time as such Person, together with all controlled Affiliates and Associates of
such Person, ceases to Beneficially Own



 









 







5% or more of the then-outstanding Common Shares, and (ii) a Person will not be deemed to have
become an Acquiring Person solely as a result of a reduction in the number of Common Shares
outstanding unless and until such time as (A) such Person or any controlled Affiliate or Associate
of such Person thereafter becomes 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 (B) any other Person who is the
Beneficial Owner of Common Shares thereafter becomes a controlled Affiliate or Associate of such
Person. Notwithstanding the foregoing, if the Board of Directors of the Company determines in good
faith that a Person who would otherwise be an “Acquiring Person” as defined pursuant to the
foregoing provisions of this Section 1(a) has become such inadvertently, and such Person divests as
promptly as practicable or agrees in writing with the Company to divest, a sufficient number of
Common Shares so that such Person would no longer be an “Acquiring Person” as defined pursuant to
the foregoing provisions of this Section 1(a), then such Person shall not be deemed to be an
“Acquiring Person” for any purposes of this Agreement.



     (b) “Adoption Date” has the meaning set forth in the Recitals to this Agreement.



     (c) “Affiliate” and “Associate” will have the respective meanings ascribed to such terms in
Rule 12b-2 of the General Rules and Regulations under the Exchange Act, as in effect on the date of
this Agreement, and to the extent not included within the foregoing clause of this Section 1(c),
will also include, with respect to any Person, any other Person (other than a Related Person, a
Restricted Person or an Exempt Person) whose Common Shares would be deemed constructively owned by
such first Person pursuant to the provisions of Section 382 of the Internal Revenue Code of 1986,
as amended (the “Code”), or any successor provision or replacement provision, provided, however,
that a Person will not be deemed to be the Affiliate or Associate of another Person solely because
either or both Persons are or were Directors of the Company.



     (d) A Person will be deemed the “Beneficial Owner” of, and to “Beneficially Own,” any
securities:



          (i) the beneficial ownership of which such Person or any of such Person’s controlled
Affiliates or Associates, directly or indirectly, has the right to acquire (whether such right is
exercisable immediately or only after the passage of time) pursuant to any agreement, arrangement
or understanding (whether or not in writing), or upon the exercise of conversion rights, exchange
rights, warrants, options or other rights (in each case, other than upon exercise or exchange of
the Rights); provided, however, that a Person will not be deemed the Beneficial
Owner of, or to Beneficially Own, securities tendered pursuant to a tender or exchange offer made
by or on behalf of such Person or any of such Person’s controlled Affiliates or Associates until
such tendered securities are accepted for purchase or exchange; or



          (ii) which such Person or any of such Person’s controlled Affiliates or Associates, directly
or indirectly, has or shares the right to vote or dispose of, including pursuant to any agreement,
arrangement or understanding (whether or not in writing); or



2









 





          (iii) of which any other Person is the Beneficial Owner, if such Person or any of such
Person’s controlled Affiliates or Associates has any agreement, arrangement or understanding
(whether or not in writing) with such other Person (or any of such other Person’s Affiliates or
Associates) with respect to acquiring, holding, voting or disposing of any securities of the
Company;


provided, however, that a Person will not be deemed the Beneficial Owner of, or to
Beneficially Own, any security (A) if such Person has the right to vote such security pursuant to
an agreement, arrangement or understanding (whether or not in writing) which (1) arises solely from
a revocable proxy given to such Person in response to a public proxy or consent solicitation made
pursuant to, and in accordance with, the applicable rules and regulations of the Exchange Act and
(2) is not also then reportable on Schedule 13D under the Exchange Act (or any comparable or
successor report), or (B) if such beneficial ownership arises solely as a result of such Person’s
status as a “clearing agency,” as defined in Section 3(a)(23) of the Exchange Act; provided
further, however, that nothing in this Section 1(d) will cause a Person engaged in
business as an underwriter of securities to be the Beneficial Owner of, or to Beneficially Own, any
securities acquired through such Person’s participation in good faith in an underwriting syndicate
until the expiration of 40 calendar days after the date of such acquisition, or such later date as
the Directors of the Company may determine in any specific case. Notwithstanding anything herein
to the contrary, to the extent not within the foregoing provisions of this Section 1(d), a Person
shall be deemed the “Beneficial Owner” of and shall be deemed to “beneficially own” or have
“beneficial ownership” of, and securities which such Person would be deemed to constructively own
pursuant to Section 382 of the Code, or any successor provision or replacement provision.




     (e) “Business Day” means any day other than a Saturday, Sunday or a day on which banking
institutions in the State of New York (or such other state in which the principal office of the
Rights Agent is located) are authorized or obligated by law or executive order to close.



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



     (g) “Code” has the meaning set forth in Section 1(c).



     (h) “Common Shares” when used with reference to the Company means the shares of common stock,
par value $0.10 per share, of the Company; provided, however, that if the Company
is the continuing or surviving corporation in a transaction described in Section 13(a)(ii), “Common
Shares” when used with reference to the Company means shares of the capital stock or units of the
equity interests with the greatest aggregate voting power of the Company. “Common Shares” when
used with reference to any corporation or other legal entity other than the Company, including an
Issuer, means shares of the capital stock or units of the equity interests with the greatest
aggregate voting power of such corporation or other legal entity.



          (i) “Company” means USG Corporation, a Delaware corporation.



3









 





     (j) “Distribution Date” means the earlier of: (i) the Close of Business on the tenth calendar
day following the Share Acquisition Date, or (ii) the Close of Business on the tenth Business Day
(or, unless the Distribution Date shall have previously occurred, such later date as may be
specified by the Board of Directors of the Company) after the commencement of a tender or exchange
offer by any Person (other than the Company, any Related Person, a Restricted Person or any Exempt
Person), if upon the consummation thereof such Person would be the Beneficial Owner of 5% or more
of the then-outstanding Common Shares.



     (k) “Exchange Act” means the Securities Exchange Act of 1934, as amended.



     (l) “Exempt Person” means a Person whose Beneficial Ownership (together with all Affiliates
and Associates of such Person) of 5% of more of the then-outstanding Common Shares (but less than
15% of the then-outstanding Common Shares) will not, as determined by the Company’s Board of
Directors in its sole discretion pursuant to a duly adopted resolution, jeopardize or endanger the
availability to the Company of any income tax benefit, provided, however, that such a Person will
cease to be an Exempt Person if the Board makes a contrary determination with respect to the effect
of such Person’s Beneficial Ownership (together with all Affiliates and Associates of such Person)
regardless of the reason therefor.



     (m) “Expiration Date” means the earliest of (i) the later of (A) the Close of Business on
December 31, 2006, so long as of such time (x) no Person is an Acquiring Person and (y) no
tender offer or exchange offer has been commenced that if consummated would cause a Distribution
Date to occur and (B) the Close of Business on the 30th calendar day following the date
of effectiveness of the Plan of Reorganization, provided, that such effectiveness is not
stayed or the transactions provided therein enjoined or restrained, and so long as of such time
(x) the Fair Act has not been enacted and made law, (y) no Person is an Acquiring Person, and (z)
no tender offer or exchange offer has been commenced that if consummated would cause a Distribution
Date to occur, (ii) the time at which the Rights are redeemed as provided in Section 23, and (iii)
the time at which all exercisable Rights are exchanged as provided in Section 24.



     (n) “Flip-in Event” means any event described in clauses (A), (B) or (C) of Section 11(a)(ii).



     (o) “Flip-over Event” means any event described in clauses (i), (ii) or (iii) of Section
13(a).



     (p) “Investor” means Berkshire Hathaway Inc., a Delaware corporation.



     (q) “Issuer” has the meaning set forth in Section 13(b).



     (r) “Nasdaq” means The Nasdaq Stock Market.



     (s) “Person” means any individual, firm, corporation or other legal entity, and includes any
successor (by merger or otherwise) of such entity.



4









 





     (t) “Plan of Reorganization” means the Plan of Reorganization approved by the U.S. Bankruptcy
Court administering the Company’s reorganization proceedings under the United States Bankruptcy
Code, 11. U.S.C. §§ 101, et seq.



     (u) “Preferred Shares” means shares of Junior Participating Preferred Stock, Series D, par
value $1.00 per share, of the Company.



     (v) “Purchase Price” means initially $200.00 per one one-hundredth of a Preferred Share,
subject to adjustment from time to time as provided in this Agreement.



     (w) “Record Date” has the meaning set forth in the Recitals to this Agreement.



     (x) “Redemption Price” means $0.001 per Right, subject to adjustment by resolution of the
Board of Directors of the Company to reflect any stock split, stock dividend or similar transaction
occurring after the Record Date.



     (y) “Related Person” means (i) any Subsidiary of the Company or (ii) any employee benefit or
stock ownership plan of the Company or of any Subsidiary of the Company or any entity holding
Common Shares for or pursuant to the terms of any such plan.



     (z) “Restricted Person” means, during the Standstill Period (as defined in the Shareholder’s
Agreement, dated as of January 30, 2006, as it may be amended from time to time (the “Shareholder’s
Agreement”), by and between the Company and the Investor) and so long as the Shareholder’s
Agreement is in effect, (i) the Investor, (ii) any Controlled Affiliate (as defined in the
Shareholder’s Agreement), and (iii) any group that would be deemed to be a ‘person’ by Section
13(d)(3) of the Exchange Act with respect to securities of the Company of which the Investor or any
Person directly or indirectly Controlling or Controlled by (each as defined in the Shareholder’s
Agreement) the Investor is a member, provided that if it is finally judicially determined
by a court of competent jurisdiction that the Investor breached any of the representations,
warranties, covenants or other provisions contained in the Shareholder’s Agreement, and such
breach has not been cured by the Investor within 30 days following receipt by the Investor of the
Company’s written notice of such breach, then the Investor, any Controlled Affiliate and any group
described in clause (iii) above shall immediately and automatically cease to be a Restricted Person
as of the Close of Business on the 30th day following the Investor’s receipt of the
Company’s written notice of such breach.



     (aa) “Right” has the meaning set forth in the Recitals to this Agreement.



     (bb) “Right Certificates” means certificates evidencing the Rights, in substantially the form
attached as Exhibit A.



     (cc) “Rights Agent” means the Person designated as such on the signature page, unless and
until a successor Rights Agent has become such pursuant to the terms of this Agreement, and
thereafter, “Rights Agent” means such successor Rights Agent.



     (dd) “Securities Act” means the Securities Act of 1933, as amended.



5









 





     (ee) “Settlement Term Sheet” means the Settlement Term Sheet, dated as of January 24, 2006, by
and among the Company and the other parties thereto, as it may be amended from time to time.



     (ff) “Share Acquisition Date” means the first date of public announcement by the Company (by
press release, filing made with the Securities and Exchange Commission or otherwise) that an
Acquiring Person has become such.



     (gg) “Subsidiary” when used with reference to any Person means any corporation or other legal
entity of which a majority of the voting power of the voting equity securities or equity interests
is owned, directly or indirectly, by such Person; provided, however, that for
purposes of Section 13(b), “Subsidiary” when used with reference to any Person means any
corporation or other legal entity of which at least 20% of the voting power of the voting equity
securities or equity interests is owned, directly or indirectly, by such Person.



     (hh) “Trading Day” means any day on which the principal national securities exchange on which
the Common Shares are listed or admitted to trading is open for the transaction of business or, if
the Common Shares are not listed or admitted to trading on any national securities exchange, a
Business Day.



     (ii) “Triggering Event” means any Flip-in Event or Flip-over Event.



     2. Appointment of Rights Agent. The Company hereby appoints the Rights Agent to act
as agent for the Company and the holders of the Rights (who, in accordance with Section 3, will
also be, prior to the Distribution Date, the holders of the Common Shares) in accordance with the
terms and conditions hereof, and the Rights Agent hereby accepts such appointment and hereby
certifies that it complies with the requirements of the New York Stock Exchange governing transfer
agents and registrars. The Company may from time to time act as Co-Rights Agent or appoint such
Co-Rights Agents as it may deem necessary or desirable. Any actions which may be taken by the
Rights Agent pursuant to the terms of this Agreement may be taken by any such Co-Rights Agent. To
the extent that any Co-Rights Agent takes any action pursuant to this Agreement, such Co-Rights
Agent will be entitled to all of the rights and protections of, and subject to all of the
applicable duties and obligations imposed upon, the Rights Agent pursuant to the terms of this
Agreement.



     3. Issue of Right Certificates. (a) Until the Distribution Date, (i) the Rights will
be evidenced by the certificates representing Common Shares registered in the names of the record
holders thereof (which certificates representing Common Shares will also be deemed to be Right
Certificates), (ii) the Rights will be transferable only in connection with the transfer of the
underlying Common Shares, and (iii) the surrender for transfer of any certificates evidencing
Common Shares in respect of which Rights have been issued will also constitute the transfer of the
Rights associated with the Common Shares evidenced by such certificates.



     (b) Rights will be issued by the Company in respect of all Common Shares (other than Common
Shares issued upon the exercise or exchange of any Right) issued or delivered by the Company
(whether originally issued or delivered from the Company’s treasury) after the Record Date but
prior to the earlier of the Distribution Date and the Expiration Date. Certificates



6









 







evidencing such Common Shares will have stamped on, impressed on, printed on, written on, or
otherwise affixed to them the following legend or such similar legend as the Company may deem
appropriate and as is not inconsistent with the provisions of this Agreement, or as may be required
to comply with any applicable law or with any rule or regulation made pursuant thereto or with any
rule or regulation of any stock exchange or transaction reporting system on which the Common Shares
may from time to time be listed or quoted, or to conform to usage:




This Certificate also evidences and entitles the holder hereof to certain Rights as
set forth in a Reorganization Rights Plan, dated as of January 30, 2006 (the “Rights
Agreement”), adopted by USG Corporation on January 29, 2006, the terms of which are
hereby incorporated herein by reference and a copy of which is on file at the
principal executive offices of USG Corporation. The Rights are not exercisable
prior to the occurrence of certain events specified in the Rights Agreement. Under
certain circumstances, as set forth in the Rights Agreement, such Rights may be
redeemed, may be exchanged, may expire, may be amended, or may be evidenced by
separate certificates and no longer be evidenced by this Certificate. USG
Corporation will mail to the holder of this Certificate a copy of the Rights
Agreement, as in effect on the date of mailing, without charge promptly after
receipt of a written request therefor. Under certain circumstances as set forth in
the Rights Agreement, Rights that are or were beneficially owned by an Acquiring
Person or any Affiliate or Associate of an Acquiring Person (as such terms are
defined in the Rights Agreement) may become null and void.



       (c) Any Right Certificate issued pursuant to this Section 3 that represents Rights
beneficially owned by an Acquiring Person or any Associate or Affiliate thereof and any Right
Certificate issued at any time upon the transfer of any Rights to an Acquiring Person or any
Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate
and any Right Certificate issued pursuant to Section 6 or 11 hereof upon transfer, exchange,
replacement or adjustment of any other Right Certificate referred to in this sentence, shall be
subject to and contain the following legend or such similar legend as the Company may deem
appropriate and as is not inconsistent with the provisions of this Agreement, or as may be required
to comply with any applicable law or with any rule or regulation made pursuant thereto or with any
rule or regulation of any stock exchange on which the Rights may from time to time be listed, or to
conform to usage:




The Rights represented by this Right Certificate are or were beneficially owned by a
Person who was an Acquiring Person or an Affiliate or an Associate of an Acquiring
Person (as such terms are defined in the Rights Agreement). This Right Certificate
and the Rights represented hereby may become null and void in the circumstances
specified in Section 11(a)(ii) or Section 13 of the Rights Agreement.



       (d) As promptly as practicable after the Distribution Date, the Company will prepare and
execute, the Rights Agent will countersign and the Company will send or cause to be sent (and the
Rights Agent will, if requested, send), by first class, insured, postage prepaid mail, to each
record holder of Common Shares as of the Close of Business on the Distribution Date, at the address
of such holder shown on the records of the Company, a Right Certificate evidencing



7









 







one Right for each Common Share so held, subject to adjustment as provided herein. As of and
after the Distribution Date, the Rights will be evidenced solely by such Right Certificates.



     (e) In the event that the Company purchases or otherwise acquires any Common Shares after the
Record Date but prior to the Distribution Date, any Rights associated with such Common Shares will
be deemed canceled and retired so that the Company will not be entitled to exercise any Rights
associated with the Common Shares so purchased or acquired.



     4. Form of Right Certificates. The Right Certificates (and the form of election to
purchase and the form of assignment to be printed on the reverse thereof) will be substantially in
the form attached as Exhibit A with such changes and marks of identification or
designation, and such legends, summaries or endorsements printed thereon, as the Company may deem
appropriate and as are not inconsistent with the provisions of this Agreement, or as may be
required to comply with any applicable law or with any rule or regulation made pursuant thereto or
with any rule or regulation of any stock exchange or transaction reporting system on which the
Rights may from time to time be listed or quoted, or to conform to usage. Subject to the
provisions of Section 22, the Right Certificates, whenever issued, on their face will entitle the
holders thereof to purchase such number of one one-hundredths of a Preferred Share as are set forth
therein at the Purchase Price set forth therein, but the Purchase Price, the number and kind of
securities issuable upon exercise of each Right and the number of Rights outstanding will be
subject to adjustment as provided herein.



     5. Countersignature and Registration. (a) The Right Certificates will be executed on
behalf of the Company by its Chairman of the Board, its President or any Vice President, either
manually or by facsimile signature, and will have affixed thereto the Company’s seal or a facsimile
thereof which will be attested by the Secretary or an Assistant Secretary of the Company, either
manually or by facsimile signature. The Right Certificates will be manually countersigned by the
Rights Agent and will not be valid for any purpose unless so countersigned. In case any officer of
the Company who signed any of the Right Certificates ceases to be such officer of the Company
before countersignature by the Rights Agent and issuance and delivery by the Company, such Right
Certificates, nevertheless, may be countersigned by the Rights Agent, and issued and delivered by
the Company with the same force and effect as though the person who signed such Right Certificates
had not ceased to be such officer of the Company; and any Right Certificate may be signed on behalf
of the Company by any person who, at the actual date of the execution of such Right Certificate, is
a proper officer of the Company to sign such Right Certificate, although at the date of the
execution of this Agreement any such person was not such officer.



     (b) Following the Distribution Date, the Rights Agent will keep or cause to be kept, at the
principal office of the Rights Agent designated for such purpose and at such other offices as may
be required to comply with any applicable law or with any rule or regulation made pursuant thereto
or with any rule or regulation of any stock exchange or any transaction reporting system on which
the Rights may from time to time be listed or quoted, books for registration and transfer of the
Right Certificates issued hereunder. Such books will show the names and addresses of the
respective holders of the Right Certificates, the number of Rights evidenced on its face by each of
the Right Certificates and the date of each of the Right Certificates.



8









 





     6. Transfer, Split Up, Combination and Exchange of Right Certificates; Mutilated,
Destroyed, Lost or Stolen Right Certificates. (a) Subject to the provisions of Sections 7(d)
and 14, at any time after the Close of Business on the Distribution Date and prior to the
Expiration Date, any Right Certificate or Right Certificates representing exercisable Rights may be
transferred, split up, combined or exchanged for another Right Certificate or Right Certificates,
entitling the registered holder to purchase a like number of one one-hundredths of a Preferred
Share (or other securities, as the case may be) as the Right Certificate or Right Certificates
surrendered then entitled such holder (or former holder in the case of a transfer) to purchase.
Any registered holder desiring to transfer, split up, combine or exchange any such Right
Certificate or Rights Certificates must make such request in a writing delivered to the Rights
Agent and must surrender the Right Certificate or Right Certificates to be transferred, split up,
combined or exchanged at the principal office of the Rights Agent designated for such purpose.
Thereupon or as promptly as practicable thereafter, subject to the provisions of Sections 7(d) and
14, the Company will prepare, execute and deliver to the Rights Agent, and the Rights Agent will
countersign and deliver, a Right Certificate or Right Certificates, as the case may be, as so
requested. The Company may require payment of a sum sufficient to cover any tax or governmental
charge that may be imposed in connection with any transfer, split up, combination or exchange of
Right Certificates.



     (b) Upon receipt by the Company and the Rights Agent of evidence reasonably satisfactory to
them of the loss, theft, destruction or mutilation of a Right Certificate and, in case of loss,
theft or destruction, of indemnity or security reasonably satisfactory to them, and, if requested
by the Company, reimbursement to the Company and the Rights Agent of all reasonable expenses
incidental thereto, and upon surrender to the Rights Agent and cancellation of the Right
Certificate if mutilated, the Company will prepare, execute and deliver a new Right Certificate of
like tenor to the Rights Agent and the Rights Agent will countersign and deliver such new Right
Certificate to the registered holder in lieu of the Right Certificate so lost, stolen, destroyed or
mutilated.



     7. Exercise of Rights; Purchase Price; Expiration Date of Rights. (a) The registered
holder of any Right Certificate may exercise the Rights evidenced thereby (except as otherwise
provided herein) in whole or in part at any time after the Distribution Date and prior to the
Expiration Date, upon surrender of the Right Certificate, with the form of election to purchase on
the reverse side thereof duly executed, to the Rights Agent at the office or offices of the Rights
Agent designated for such purpose, together with payment in cash, in lawful money of the United
States of America by certified check or bank draft payable to the order of the Company, equal to
the sum of (i) the exercise price for the total number of securities as to which such surrendered
Rights are exercised and (ii) an amount equal to any applicable transfer tax required to be paid by
the holder of such Right Certificate in accordance with the provisions of Section 9(d).



     (b) Upon receipt of a Right Certificate representing exercisable Rights with the form of
election to purchase duly executed, accompanied by payment as described above, the Rights Agent
will promptly (i) requisition from any transfer agent of the Preferred Shares (or make available,
if the Rights Agent is the transfer agent) certificates representing the number of one
one-hundredths of a Preferred Share to be purchased (and the Company hereby irrevocably



9









 







authorizes and directs its transfer agent to comply with all such requests), or, if the
Company elects to deposit Preferred Shares issuable upon exercise of the Rights hereunder with a
depositary agent, requisition from the depositary agent depositary receipts representing such
number of one one-hundredths of a Preferred Share as are to be purchased (and the Company hereby
irrevocably authorizes and directs such depositary agent to comply with all such requests), (ii)
after receipt of such certificates (or depositary receipts, as the case may be), 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) when appropriate, requisition from
the Company or any transfer agent therefor (or make available, if the Rights Agent is the transfer
agent) certificates representing the number of equivalent common shares to be issued in lieu of the
issuance of Common Shares in accordance with the provisions of Section 11(a)(iii), (iv) when
appropriate, 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, (v) when appropriate, requisition from the Company the amount of cash
to be paid in lieu of the issuance of fractional shares in accordance with the provisions of
Section 14 or in lieu of the issuance of Common Shares in accordance with the provisions of Section
11(a)(iii), (vi) when appropriate, after receipt, deliver such cash to or upon the order of the
registered holder of such Right Certificate, and (vii) when appropriate, deliver any due bill or
other instrument provided to the Rights Agent by the Company for delivery to the registered holder
of such Right Certificate as provided by Section 11(l).



     (c) In case the registered holder of any Right Certificate exercises less than all the Rights
evidenced thereby, the Company will prepare, execute and deliver a new Right Certificate evidencing
Rights equivalent to the Rights remaining unexercised and the Rights Agent will countersign and
deliver such new Right Certificate to the registered holder of such Right Certificate or to his
duly authorized assigns, subject to the provisions of Section 14.



     (d) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor
the Company will be obligated to undertake any action with respect to any purported transfer, split
up, combination or exchange of any Right Certificate pursuant to Section 6 or exercise of a Right
Certificate as set forth in this Section 7 unless the registered holder of such Right Certificate
has (i) completed and signed the certificate following the form of assignment or the form of
election to purchase, as applicable, set forth on the reverse side of the Right Certificate
surrendered for such transfer, split up, combination, exchange or exercise and (ii) provided such
additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or
Affiliates or Associates thereof as the Company may reasonably request.



     8. Cancellation and Destruction of Right Certificates. All Right Certificates
surrendered for the purpose of exercise, transfer, split up, combination or exchange will, if
surrendered to the Company or to any of its stock transfer agents, be delivered to the Rights Agent
for cancellation or in canceled form, or, if surrendered to the Rights Agent, will be canceled by
it, and no Right Certificates will be issued in lieu thereof except as expressly permitted by the
provisions of this Agreement. The Company will deliver to the Rights Agent for cancellation and
retirement, and the Rights Agent will so cancel and retire, any other Right Certificate purchased
or acquired by the Company otherwise than upon the exercise thereof. The Rights Agent will deliver
all canceled Right Certificates to the Company, or will, at the written



10









 







request of the Company, destroy such canceled Right Certificates, and in such case will
deliver a certificate of destruction thereof to the Company.



     9. Company Covenants Concerning Securities and Rights. The Company covenants and
agrees that:



     (a) It will cause to be reserved and kept available out of its authorized and unissued
Preferred Shares or any Preferred Shares held in its treasury, a number of Preferred Shares that
will be sufficient to permit the exercise in full of all outstanding Rights in accordance with
Section 7.



     (b) So long as the Preferred Shares (and, following the occurrence of a Triggering Event,
Common Shares and/or other securities) issuable upon the exercise of the Rights may be listed on a
national securities exchange, or quoted on Nasdaq, it will endeavor to cause, from and after such
time as the Rights become exercisable, all securities reserved for issuance upon the exercise of
Rights to be listed on such exchange, or quoted on Nasdaq, upon official notice of issuance upon
such exercise.



     (c) It will take all such action as may be necessary to ensure that all Preferred Shares (and,
following the occurrence of a Triggering Event, Common Shares and/or other securities) delivered
upon exercise of Rights, at the time of delivery of the certificates for such securities, will be
(subject to payment of the Purchase Price) duly authorized, validly issued, fully paid and
nonassessable securities.



     (d) It will pay when due and payable any and all federal and state transfer taxes and charges
that may be payable in respect of the issuance or delivery of the Right Certificates and of any
certificates representing securities issued upon the exercise of Rights; provided,
however, that the Company will not be required to pay any transfer tax or charge which may
be payable in respect of any transfer or delivery of Right Certificates to a person other than, or
the issuance or delivery of certificates or depositary receipts representing securities issued upon
the exercise of Rights in a name other than that of, the registered holder of the Right Certificate
evidencing Rights surrendered for exercise, or to issue or deliver any certificates or depositary
receipts representing securities issued upon the exercise of any Rights until any such tax or
charge has been paid (any such tax or charge being payable by the holder of such Right Certificate
at the time of surrender) or until it has been established to the Company’s reasonable satisfaction
that no such tax is due.



     (e) It will use its best efforts (i) to file on an appropriate form, as soon as practicable
following the later of the Share Acquisition Date and the Distribution Date, a registration
statement under the Securities Act with respect to the securities issuable upon exercise of the
Rights, (ii) to cause such registration statement to become effective as soon as practicable after
such filing, and (iii) to cause such registration statement to remain effective (with a prospectus
at all times meeting the requirements of the Securities Act) until the earlier of (A) the date as
of which the Rights are no longer exercisable for such securities and (B) the 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, for a period of time after the date set forth in



11









 







clause (i) of the first sentence of this Section 9(e), the exercisability of the Rights in
order to prepare and file such registration statement and to permit it to become effective. Upon
any such suspension, the Company 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. In addition, if the Company determines that a registration
statement should be filed under the Securities Act or any state securities laws following the
Distribution Date, the Company may temporarily suspend the exercisability of the Rights in each
relevant jurisdiction until such time as a registration statement has been declared effective and,
upon any such suspension, the Company 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 will not be exercisable in any jurisdiction if the requisite registration
or qualification in such jurisdiction has not been effected or the exercise of the Rights is not
permitted under applicable law.



     (f) Notwithstanding anything in this Agreement to the contrary, after the later of the Share
Acquisition Date and the Distribution Date the Company will not take (or permit any Subsidiary to
take) any action if at the time such action is taken it is reasonably foreseeable that such action
will eliminate or otherwise diminish the benefits intended to be afforded by the Rights.



     (g) In the event that the Company is obligated to issue other securities of the Company and/or
pay cash pursuant to Section 11, 13, 14 or 24 it will make all arrangements necessary so that such
other securities and/or cash are available for distribution by the Rights Agent, if and when
appropriate.



     10. Record Date. Each Person in whose name any certificate representing Preferred
Shares (or Common Shares and/or other securities, as the case may be) is issued upon the exercise
of Rights will for all purposes be deemed to have become the holder of record of the Preferred
Shares (or Common Shares and/or other securities, as the case may be) represented thereby on, and
such certificate will be dated, the date upon which the Right Certificate evidencing such Rights
was duly surrendered and payment of the Purchase Price (and all applicable transfer taxes) was
made; provided, however, that if the date of such surrender and payment is a date upon which the
transfer books of the Company for the Preferred Shares (or Common Shares and/or other securities,
as the case may be) are closed, such Person will be deemed to have become the record holder of such
securities on, and such certificate will be dated, the next succeeding Business Day on which the
transfer books of the Company for the Preferred Shares (or Common Shares and/or other securities,
as the case may be) are open. Prior to the exercise of the Rights evidenced thereby, the holder of
a Right Certificate will not be entitled to any rights of a holder of any security for which the
Rights are or may become exercisable, including, without limitation, the right to vote, to receive
dividends or other distributions, or to exercise any preemptive rights, and will not be entitled to
receive any notice of any proceedings of the Company, except as provided herein.



     11. Adjustment of Purchase Price, Number and Kind of Securities or Number of Rights.
The Purchase Price, the number and kind of securities issuable upon exercise of each



12









 







Right and the number of Rights outstanding are subject to adjustment from time to time as
provided in this Section 11.



     (a) (i) In the event that the Company at any time after the Record Date (A) declares a
dividend on the Preferred Shares payable in Preferred Shares, (B) subdivides the outstanding
Preferred Shares, (C) combines the outstanding Preferred Shares into a smaller number of Preferred
Shares, or (D) issues any shares of its capital stock in a reclassification of the Preferred Shares
(including any such reclassification in connection with a consolidation or merger in which the
Company is the continuing or surviving corporation), except as otherwise provided in this Section
11(a), the Purchase Price in effect at the time of the record date for such dividend or of the
effective date of such subdivision, combination or reclassification and/or the number and/or kind
of shares of capital stock issuable on such date upon exercise of a Right, will be proportionately
adjusted so that the holder of any Right exercised after such time is entitled to receive upon
payment of the Purchase Price then in effect the aggregate number and kind of shares of capital
stock which, if such Right had been exercised immediately prior to such date and at a time when the
transfer books of the Company for the Preferred Shares were open, the holder of such Right would
have owned upon such exercise (and, in the case of a reclassification, would have retained after
giving effect to such reclassification) and would have been entitled to receive by virtue of such
dividend, subdivision, combination or reclassification; provided, however, that in
no event shall the consideration to be paid upon the exercise of one Right be less than the
aggregate par value of the shares of capital stock issuable upon exercise of one Right. If an
event occurs which would require an adjustment under both this Section 11(a)(i) and Section
11(a)(ii) or Section 13, the adjustment provided for in this Section 11(a)(i) will be in addition
to, and will be made prior to, any adjustment required pursuant to Section 11(a)(ii) or Section 13.



          (ii) Subject to the provisions of Section 24, if:



     (A) any Person becomes an Acquiring Person; or



     (B) any Acquiring Person or any Affiliate or Associate of any Acquiring Person, directly or
indirectly, (1) merges into the Company or otherwise combines with the Company and the Company is
the continuing or surviving corporation of such merger or combination (other than in a transaction
subject to Section 13), (2) merges or otherwise combines with any Subsidiary of the Company, (3) in
one or more transactions (otherwise than in connection with the exercise, exchange or conversion of
securities exercisable or exchangeable for or convertible into shares of any class of capital stock
of the Company or any of its Subsidiaries) transfers cash, securities or any other property to the
Company or any of its Subsidiaries in exchange (in whole or in part) for shares of any class of
capital stock of the Company or any of its Subsidiaries or for securities exercisable or
exchangeable for or convertible into shares of any class of capital stock of the Company or any of
its Subsidiaries, or otherwise obtains from the Company or any of its Subsidiaries, with or without
consideration, any additional shares of any class of capital stock of the Company or any of its
Subsidiaries or securities exercisable or exchangeable for or convertible into shares of any class
of capital stock of the Company or any of its Subsidiaries (otherwise than as part of a pro rata
distribution to all holders of shares of any class of capital stock of the Company, or any of its
Subsidiaries), (4) sells, purchases, leases, exchanges, mortgages, pledges, transfers or otherwise
disposes (in one or more transactions) to, from, with



13









 







or of, as the case may be, the Company or any of its Subsidiaries (otherwise than in a
transaction subject to Section 13), any property, including securities, on terms and conditions
less favorable to the Company than the Company would be able to obtain in an arm’s-length
transaction with an unaffiliated third party, (5) receives any compensation from the Company or any
of its Subsidiaries other than compensation as a director or a regular full-time employee, in
either case at rates consistent with the Company’s (or its Subsidiaries’) past practices, or (6)
receives the benefit, directly or indirectly (except proportionately as a stockholder), of any
loans, advances, guarantees, pledges or other financial assistance or any tax credits or other tax
advantage provided by the Company or any of its Subsidiaries; or



     (C) during such time as there is an Acquiring Person, there is any reclassification of
securities of the Company (including any reverse stock split), or any recapitalization of the
Company, or any merger or consolidation of the Company with any of its Subsidiaries, or any other
transaction or series of transactions involving the Company or any of its Subsidiaries (whether or
not with or into or otherwise involving an Acquiring Person), other than a transaction subject to
Section 13, which has the effect, directly or indirectly, of increasing by more than 1% the
proportionate share of the outstanding shares of any class of equity securities of the Company or
any of its Subsidiaries, or of securities exercisable or exchangeable for or convertible into
equity securities of the Company or any of its Subsidiaries, of which an Acquiring Person, or any
Affiliate or Associate of any Acquiring Person, is the Beneficial Owner;


then, and in each such case, from and after the latest of the Distribution Date, the Share
Acquisition Date and the date of the occurrence of such Flip-in Event, proper provision
will be made so that each holder of a Right, except as provided below, will thereafter have
the 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 the then-current Purchase Price
multiplied by the number of one one-hundredths of a Preferred Share for which a Right was
exercisable immediately prior to the date of the occurrence of such Flip-in Event (or, if
any other Flip-in Event shall have previously occurred, the product of the then-current
Purchase Price multiplied by the number of one one-hundredths of a Preferred Share for
which a Right was exercisable immediately prior to the date of the first occurrence of a
Flip-in Event), in lieu of Preferred Shares, such number of Common Shares as equals the
result obtained by (x) multiplying the then-current Purchase Price by the number of one
one-hundredths of a Preferred Share for which a Right was exercisable immediately prior to
the date of the occurrence of such Flip-in Event (or, if any other Flip-in Event shall have
previously occurred, multiplying the then-current Purchase Price by the number of one
one-hundredths of a Preferred Share for which a Right was exercisable immediately prior to
the date of the first occurrence of a Flip-in Event), and dividing that product by (y) 50%
of the current per share market price of the Common Shares (determined pursuant to Section
11(d)) on the date of the occurrence of such Flip-in Event. Notwithstanding anything in
this Agreement to the contrary, from and after the first occurrence of a Flip-in Event, any
Rights that are Beneficially Owned by (A) any Acquiring Person (or any Affiliate or
Associate of any Acquiring Person), (B) a transferee of any Acquiring Person (or any such
Affiliate or Associate) who becomes a transferee after the occurrence of a Flip-in Event,
or (C) a transferee of any Acquiring


14









 






Person (or any such Affiliate or Associate) who became a transferee prior to or
concurrently with the occurrence of a Flip-in Event pursuant to either (1) a transfer from
an Acquiring Person to holders of its equity securities or to any Person with whom it has
any continuing agreement, arrangement or understanding regarding the transferred Rights or
(2) a transfer which the Directors of the Company have determined is part of a plan,
arrangement or understanding which has the purpose or effect of avoiding the provisions of
this Section 11(a)(ii), and subsequent transferees of any of such Persons, will be void
without any further action and any holder of such Rights will thereafter have no rights
whatsoever with respect to such Rights under any provision of this Agreement. The Company
will use all reasonable efforts to ensure that the provisions of this Section 11(a)(ii) are
complied with, but will have no liability to any holder of Right Certificates or any other
Person as a result of its failure to make any determinations with respect to an Acquiring
Person or its Affiliates, Associates or transferees hereunder. Upon the occurrence of a
Flip-in Event, no Right Certificate that represents Rights that are or have become void
pursuant to the provisions of this Section 11(a)(ii) will thereafter be issued pursuant to
Section 3 or Section 6, and any Right Certificate delivered to the Rights Agent that
represents Rights that are or have become void pursuant to the provisions of this Section
11(a)(ii) will be canceled. Upon the occurrence of a Flip-over
 Event, any Rights that
shall not have been previously exercised pursuant to this Section 11(a)(ii) shall
thereafter be exercisable only pursuant to Section 13 and not pursuant to this Section
11(a)(ii).




          (iii) Upon the occurrence of a Flip-in Event, if there are not sufficient Common Shares
authorized but unissued or issued but not outstanding to permit the issuance of all the Common
Shares issuable in accordance with Section 11(a)(ii) upon the exercise of a Right, the Board of
Directors of the Company will use its best efforts promptly to authorize and, subject to the
provisions of Section 9(e), make available for issuance additional Common Shares or other equity
securities of the Company having equivalent voting rights and an equivalent value (as determined in
good faith by the Board of Directors of the Company) to the Common Shares (for purposes of this
Section 11(a)(iii), “equivalent common shares”). In the event that equivalent common shares are so
authorized, upon the exercise of a Right in accordance with the provisions of Section 7, the
registered holder will be entitled to receive (A) Common Shares, to the extent any are available,
and (B) a number of equivalent common shares, which the Board of Directors of the Company has
determined in good faith to have a value equivalent to the excess of (x) the aggregate current per
share market value on the date of the occurrence of the most recent Flip-in Event of all the Common
Shares issuable in accordance with Section 11(a)(ii) upon the exercise of a Right (the “Exercise
Value”) over (y) the aggregate current per share market value on the date of the occurrence of the
most recent Flip-in Event of any Common Shares available for issuance upon the exercise of such
Right; provided, however, that if at any time after 90 calendar days after the
latest of the Share Acquisition Date, the Distribution Date and the date of the occurrence of the
most recent Flip-in Event, there are not sufficient Common Shares and/or equivalent common shares
available for issuance upon the exercise of a Right, then the Company will be obligated to deliver,
upon the surrender of such Right and without requiring payment of the Purchase Price, Common Shares
(to the extent available), equivalent 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



15









 







to the Share Acquisition Date), which securities and cash have an aggregate value equal to the
excess of (1) the Exercise Value over (2) the product of the then-current Purchase Price multiplied
by the number of one one-hundredths of a Preferred Share for which a Right was exercisable
immediately prior to the date of the occurrence of the most recent Flip-in Event (or, if any other
Flip-in Event shall have previously occurred, the product of the then-current Purchase Price
multiplied by the number of one one-hundredths of a Preferred Share for which a Right would have
been exercisable immediately prior to the date of the occurrence of such Flip-in Event if no other
Flip-in Event had previously occurred). 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 will 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 and will continue to make payments on
a pro rata basis as promptly as funds become available until the full amount due to each such
Rights holder has been paid.



     (b) In the event that the Company fixes a record date for the issuance of rights, options or
warrants to all holders of Preferred Shares entitling them (for a period expiring within 45
calendar days after such record date) to subscribe for or purchase Preferred Shares (or securities
having equivalent rights, privileges and preferences as the Preferred Shares (for purposes of this
Section 11(b), “equivalent preferred shares”)) or securities convertible into Preferred Shares or
equivalent preferred shares at a price per Preferred Share or equivalent preferred share (or having
a conversion price per share, if a security convertible into Preferred Shares or equivalent
preferred shares) less than the current per share market price of the Preferred Shares (determined
pursuant to Section 11(d)) on such record date, the Purchase Price to be in effect after such
record date will be determined by multiplying the Purchase Price in effect immediately prior to
such record date by a fraction, the numerator of which is the number of Preferred Shares
outstanding on such record date plus the number of Preferred Shares which the aggregate offering
price of the total number of Preferred Shares and/or equivalent preferred shares so to be offered
(and/or the aggregate initial conversion price of the convertible securities so to be offered)
would purchase at such current per share market price and the denominator of which is the number of
Preferred Shares outstanding on such record date plus the number of additional Preferred Shares
and/or equivalent preferred shares to be offered for subscription or purchase (or into which the
convertible securities so to be offered are initially convertible); provided,
however, that in no event shall the consideration to be paid upon the exercise of one Right
be less than the aggregate par value of the shares of capital stock issuable upon exercise of one
Right. In case such subscription price may be paid in a consideration part or all of which is in a
form other than cash, the value of such consideration will be as determined in good faith by the
Board of Directors of the Company, whose determination will be described in a statement filed with
the Rights Agent. Preferred Shares owned by or held for the account of the Company will not be
deemed outstanding for the purpose of any such computation. Such adjustment will be made
successively whenever such a record date is fixed, and in the event that such rights, options or
warrants are not so issued, the Purchase Price will be adjusted to be the Purchase Price which
would then be in effect if such record date had not been fixed.



     (c) In the event that the Company fixes a record date for the making of a distribution to all
holders of Preferred Shares (including any such distribution made in connection with a
consolidation or merger in which the Company is the continuing or surviving corporation) of



16









 







evidences of indebtedness, cash (other than a regular periodic cash dividend), assets, stock
(other than a dividend payable in Preferred Shares) or subscription rights, options or warrants
(excluding those referred to in Section 11(b)), the Purchase Price to be in effect after such
record date will be determined by multiplying the Purchase Price in effect immediately prior to
such record date by a fraction, the numerator of which is the current per share market price of the
Preferred Shares (as determined pursuant to Section 11(d)) on such record date or, if earlier, the
date on which Preferred Shares begin to trade on an ex-dividend or when issued basis for such
distribution, less the fair market value (as determined in good faith by the Board of Directors of
the Company, whose determination will be described in a statement filed with the Rights Agent) of
the portion of the evidences of indebtedness, cash, assets or stock so to be distributed or of such
subscription rights, options or warrants applicable to one Preferred Share, and the denominator of
which is such current per share market price of the Preferred Shares; provided,
however, that in no event shall the consideration to be paid upon the exercise of one Right
be less than the aggregate par value of the shares of capital stock issuable upon exercise of one
Right. Such adjustments will be made successively whenever such a record date is fixed; and in the
event that such distribution is not so made, the Purchase Price will again be adjusted to be the
Purchase Price which would then be in effect if such record date had not been fixed.



     (d) (i) For the purpose of any computation hereunder, the “current per share market price” of
Common Shares on any date will be deemed to be the average of the daily closing prices per share of
such Common Shares for the 30 consecutive Trading Days immediately prior to such date;
provided, however, that in the event that the current per share market price of the
Common Shares is determined during a period following the announcement by the issuer of such Common
Shares of (A) a dividend or distribution on such Common Shares payable in such Common Shares or
securities convertible into such Common Shares (other than the Rights) or (B) any subdivision,
combination or reclassification of such Common Shares, and prior to the expiration of 30 Trading
Days after the ex-dividend date for such dividend or distribution, or the record date for such
subdivision, combination or reclassification, then, and in each such case, the current per share
market price will be appropriately adjusted to take into account ex-dividend trading or to reflect
the current per share market price per Common Share equivalent. The closing price for each day
will be the last sale price, regular way, or, in case no such sale takes place on such day, the
average of the closing bid and asked prices, regular way, in either case as reported in the
principal consolidated transaction reporting system with respect to securities listed or admitted
to trading on the New York Stock Exchange or, if the Common Shares are not listed or admitted to
trading on the New York Stock Exchange, as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal national securities exchange on
which the Common Shares are listed or admitted to trading or, if the Common Shares are not listed
or admitted to trading on any national securities exchange, the last quoted price or, if not so
quoted, the average of the high bid and low asked prices in the over-the-counter market, as
reported by Nasdaq or such other system then in use, or, if on any such date the Common Shares are
not quoted by any such organization, the average of the closing bid and asked prices as furnished
by a professional market maker making a market in the Common Shares selected by the Board of
Directors of the Company. If the Common Shares are not publicly held or not so listed or traded,
or are not the subject of available bid and asked quotes, “current per share market price” will
mean the fair value per share as determined in good



17









 







faith by the Board of Directors of the Company, whose determination will be described in a
statement filed with the Rights Agent.



          (ii) For the purpose of any computation hereunder, the “current per share market price” of the
Preferred Shares will be determined in the same manner as set forth above for Common Shares in
Section 11(d)(i), other than the last sentence thereof. If the current per share market price of
the Preferred Shares cannot be determined in the manner provided above, the “current per share
market price” of the Preferred Shares will be conclusively deemed to be an amount equal to the
current per share market price of the Common Shares multiplied by one hundred (as such number may
be appropriately adjusted to reflect events such as stock splits, stock dividends,
recapitalizations or similar transactions relating to the Common Shares occurring after the date of
this Agreement). If neither the Common Shares nor the Preferred Shares are publicly held or so
listed or traded, or the subject of available bid and asked quotes, “current per share market
price” of the Preferred Shares will mean the fair value per share as determined in good faith by
the Board of Directors of the Company, whose determination will be described in a statement filed
with the Rights Agent. For all purposes of this Agreement, the current per share market price of
one one-hundredth of a Preferred Share will be equal to the current per share market price of one
Preferred Share divided by one hundred.



     (e) Except as set forth below, no adjustment in the Purchase Price will be required unless
such adjustment would require an increase or decrease of at least 1% in such price;
provided, however, that any adjustments which by reason of this Section 11(e) are
not required to be made will be carried forward and taken into account in any subsequent
adjustment. All calculations under this Section 11 will be made to the nearest cent or to the
nearest one one-millionth of a Preferred Share or one ten-thousandth of a Common Share or other
security, as the case may be. Notwithstanding the first sentence of this Section 11(e), any
adjustment required by this Section 11 will be made no later than the earlier of (i) three years
from the date of the transaction which requires such adjustment and (ii) the Expiration Date.



     (f) If as a result of an adjustment made pursuant to Section 11(a), the holder of any Right
thereafter exercised becomes entitled to receive any securities of the Company other than Preferred
Shares, thereafter the number and/or kind of such other securities so receivable upon exercise of
any Right (and/or the Purchase Price in respect thereof) will be subject to adjustment from time to
time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to
the Preferred Shares (and the Purchase Price in respect thereof) contained in this Section 11, and
the provisions of Sections 7, 9, 10, 13 and 14 with respect to the Preferred Shares (and the
Purchase Price in respect thereof) will apply on like terms to any such other securities (and the
Purchase Price in respect thereof).



     (g) All Rights originally issued by the Company subsequent to any adjustment made to the
Purchase Price hereunder will evidence the right to purchase, at the adjusted Purchase Price, the
number of one one-hundredths of a Preferred Share issuable from time to time hereunder upon
exercise of the Rights, all subject to further adjustment as provided herein.



     (h) Unless the Company has exercised its election as provided in Section 11(i), upon each
adjustment of the Purchase Price pursuant to Section 11(b) or Section 11(c), each Right outstanding
immediately prior to the making of such adjustment will thereafter evidence the right



18









 







to purchase, at the adjusted Purchase Price, that number of one one-hundredths of a Preferred
Share (calculated to the nearest one one-millionth of a Preferred Share) obtained by (i)
multiplying (x) the number of one one-hundredths of a Preferred Share issuable upon exercise of a
Right immediately prior to such adjustment of the Purchase Price by (y) the Purchase Price in
effect immediately prior to such adjustment of the Purchase Price and (ii) dividing the product so
obtained by the Purchase Price in effect immediately after such adjustment of the Purchase Price.



     (i) The Company may elect, on or after the date of any adjustment of the Purchase Price, to
adjust the number of Rights in substitution for any adjustment in the number of one one-hundredths
of a Preferred Share issuable upon the exercise of a Right. Each of the Rights outstanding after
such adjustment of the number of Rights will be exercisable for the number of one one-hundredths of
a Preferred Share for which a Right was exercisable immediately prior to such adjustment. Each
Right held of record prior to such adjustment of the number of Rights will become that number of
Rights (calculated to the nearest one ten-thousandth) obtained by dividing the Purchase Price in
effect immediately prior to adjustment of the Purchase Price by the Purchase Price in effect
immediately after adjustment of the Purchase Price. The Company will make a public announcement of
its election to adjust the number of Rights, indicating the record date for the adjustment, and, if
known at the time, the amount of the adjustment to be made. Such record date may be the date on
which the Purchase Price is adjusted or any day thereafter, but, if the Right Certificates have
been issued, will be at least 10 calendar days later than the date of the public announcement. If
Right Certificates have been issued, upon each adjustment of the number of Rights pursuant to this
Section 11(i), the Company will, as promptly as practicable, cause to be distributed to holders of
record of Right Certificates on such record date Right Certificates evidencing, subject to the
provisions of Section 14, the additional Rights to which such holders are entitled as a result of
such adjustment, or, at the option of the Company, will cause to be distributed to such holders of
record in substitution and replacement for the Right Certificates held by such holders prior to the
date of adjustment, and upon surrender thereof if required by the Company, new Right Certificates
evidencing all the Rights to which such holders are entitled after such adjustment. Right
Certificates so to be distributed will be issued, executed, and countersigned in the manner
provided for herein (and may bear, at the option of the Company, the adjusted Purchase Price) and
will be registered in the names of the holders of record of Right Certificates on the record date
specified in the public announcement.



     (j) Without respect to any adjustment or change in the Purchase Price and/or the number and/or
kind of securities issuable upon the exercise of the Rights, the Right Certificates theretofore and
thereafter issued may continue to express the Purchase Price and the number and kind of securities
which were expressed in the initial Right Certificate issued hereunder.



     (k) Before taking any action that would cause an adjustment reducing the Purchase Price below
one one-hundredth of the then par value, if any, of the Preferred Shares or below the then par
value, if any, of any other securities of the Company issuable upon exercise of the Rights, the
Company will take any corporate action which may, in the opinion of its counsel, be necessary in
order that the Company may validly and legally issue fully paid and nonassessable Preferred Shares
or such other securities, as the case may be, at such adjusted Purchase Price.



     (l) In any case in which this Section 11 otherwise requires that an adjustment in the Purchase
Price be made effective as of a record date for a specified event, the Company may



19









 







elect to defer until the occurrence of such event the issuance to the holder of any Right
exercised after such record date the number of Preferred Shares or other securities of the Company,
if any, issuable upon such exercise over and above the number of Preferred Shares or other
securities of the Company, if any, issuable upon such exercise on the basis of the Purchase Price
in effect prior to such adjustment; provided, however, that the Company delivers to
such holder a due bill or other appropriate instrument evidencing such holder’s right to receive
such additional Preferred Shares or other securities upon the occurrence of the event requiring
such adjustment.



     (m) Notwithstanding anything in this Agreement to the contrary, the Company will be entitled
to make such reductions in the Purchase Price, in addition to those adjustments expressly required
by this Section 11, as and to the extent that in its good faith judgment the Board of Directors of
the Company determines to be advisable in order that any (i) consolidation or subdivision of the
Preferred Shares, (ii) issuance wholly for cash of Preferred Shares at less than the current per
share market price therefor, (iii) issuance wholly for cash of Preferred Shares or securities which
by their terms are convertible into or exchangeable for Preferred Shares, (iv) stock dividends, or
(v) issuance of rights, options or warrants referred to in this Section 11, hereafter made by the
Company to holders of its Preferred Shares is not taxable to such stockholders.



     (n) Notwithstanding anything in this Agreement to the contrary, in the event that the Company
at any time after the Record Date prior to the Distribution Date (i) pays a dividend on the
outstanding Common Shares payable in Common Shares, (ii) subdivides the outstanding Common Shares,
(iii) combines the outstanding Common Shares into a smaller number of shares, or (iv) issues any
shares of its capital stock in a reclassification of the outstanding Common Shares (including any
such reclassification in connection with a consolidation or merger in which the Company is the
continuing or surviving corporation), the number of Rights associated with each Common Share then
outstanding, or issued or delivered thereafter but prior to the Distribution Date, will be
proportionately adjusted so that the number of Rights thereafter associated with each Common Share
following any such event equals the result obtained by multiplying the number of Rights associated
with each Common Share immediately prior to such event by a fraction the numerator of which is the
total number of Common Shares outstanding immediately prior to the occurrence of the event and the
denominator of which is the total number of Common Shares outstanding immediately following the
occurrence of such event. The adjustments provided for in this Section 11(n) will be made
successively whenever such a dividend is paid or such a subdivision, combination or
reclassification is effected.



     12. Certificate of Adjusted Purchase Price or Number of Securities. Whenever an
adjustment is made as provided in Section 11 or Section 13, the Company will promptly (a) prepare a
certificate setting forth such adjustment and a brief statement of the facts accounting for such
adjustment, (b) file with the Rights Agent and with each transfer agent for the Preferred Shares
and the Common Shares a copy of such certificate, and (c) if such adjustment is made after the
Distribution Date, mail a brief summary of such adjustment to each holder of a Right Certificate in
accordance with Section 26.



     13. Consolidation, Merger or Sale or Transfer of Assets or Earning Power. (a) In the
event that:




20









 






          (i) at any time after a Person has become an Acquiring Person, the Company consolidates with,
or merges with or into, any other Person and the Company is not the continuing or surviving
corporation of such consolidation or merger; or



          (ii) at any time after a Person has become an Acquiring Person, any Person consolidates with
the Company, or merges with or into the Company, and the Company is 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 is changed into or exchanged for stock or other securities of any
other Person or cash or any other property; or



          (iii) at any time after a Person has become an Acquiring Person, the Company, directly or
indirectly, sells or otherwise transfers (or one or more of its Subsidiaries sells or otherwise
transfers), 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 other than the Company or one or more of
its wholly owned Subsidiaries;


then, and in each such case, proper provision will be made so that from and after the latest of the
Share Acquisition Date, the Distribution Date and the date of the occurrence of such Flip-over
Event (A) each holder of a Right thereafter has the right to receive, upon the exercise thereof in
accordance with the terms of this Agreement at an exercise price per Right equal to the product of
the then-current Purchase Price multiplied by the number of one one-hundredths of a Preferred Share
for which a Right was exercisable immediately prior to the Share Acquisition Date, such number of
duly authorized, validly issued, fully paid, nonassessable and freely tradeable Common Shares of
the Issuer, free and clear of any liens, encumbrances and other adverse claims and not subject to
any rights of call or first refusal, as equals the result obtained by (x) multiplying the
then-current Purchase Price by the number of one one-hundredths of a Preferred Share for which a
Right is exercisable immediately prior to the Share Acquisition Date 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(d)), on the date of the occurrence of such Flip-over Event; (B) the Issuer
will thereafter be liable for, and will assume, by virtue of the occurrence of such Flip-over
Event, all the obligations and duties of the Company pursuant to this Agreement; (C) the term
“Company” will thereafter be deemed to refer to the Issuer; and (D) the Issuer will 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 are thereafter applicable, as nearly as reasonably may be
possible, in relation to its Common Shares thereafter deliverable upon the exercise of the Rights.




     (b) For purposes of this Section 13, “Issuer” means (i) in the case of any Flip-over Event
described in Sections 13(a)(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 13(a)(ii) above), and (ii) in the case of any Flip-over Event
described in Section 13(a)(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



21









 





     transactions; provided, however, that, in any such case, (A) 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” means such other
Person; and (B) 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” means 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, (x) 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 will be deemed to be references to the Common Shares of the corporation
or other legal entity having outstanding equity securities which ultimately controls the Issuer,
and (y) if there is no such corporation or other legal entity having outstanding equity securities,
(I) proper provision will be made so that the Issuer creates or otherwise makes 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 (II) all
other provisions of this Agreement will apply to the issuer of such securities as if such
securities were Common Shares.



     (c) The Company will not consummate any Flip-over Event if, (i) at the time of or immediately
after such Flip-over Event, there are or would be any rights, warrants, instruments or securities
outstanding or any agreements or arrangements in effect which would eliminate or substantially
diminish the benefits intended to be afforded by the Rights, (ii) prior to, simultaneously with or
immediately after such Flip-over Event, the stockholders of the Person who constitutes, or would
constitute, the Issuer for purposes of Section 13(a) shall have received a distribution of Rights
previously owned by such Person or any of its Affiliates or Associates, or (iii) the form or nature
of the organization of the Issuer would preclude or limit the exercisability of the Rights. In
addition, the Company will not consummate any Flip-over Event unless the Issuer has a sufficient
number of authorized Common Shares (or other securities as contemplated in Section 13(b) above)
which have not been issued or reserved for issuance to permit the exercise in full of the Rights in
accordance with this Section 13 and unless prior to such consummation the Company and the Issuer
have executed and delivered to the Rights Agent a supplemental agreement providing for the terms
set forth in subsections (a) and (b) of this Section 13 and further providing that as promptly as
practicable after the consummation of any Flip-over Event, the Issuer will:



     (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 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 Expiration Date;



22









 





     (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
under the Exchange Act.



     (d) The provisions of this Section 13 will 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, except for Rights that have become void pursuant to
Section 11(a)(ii), Rights that shall not have been previously exercised will cease to be
exercisable in the manner provided in Section 11(a)(ii) and will thereafter be exercisable in the
manner provided in Section 13(a).



     14. Fractional Rights and Fractional Securities. (a) The Company will not be required
to issue fractions of Rights or to distribute Right Certificates which evidence fractional Rights.
In lieu of such fractional Rights, the Company will pay as promptly as practicable to the
registered holders of the Right Certificates with regard to which such fractional Rights otherwise
would be issuable, an amount in cash equal to the same fraction of the current market value of one
Right. For the purposes of this Section 14(a), the current market value of one Right is the
closing price of the Rights for the Trading Day immediately prior to the date on which such
fractional Rights otherwise would have been issuable. The closing price for any day is the last
sale price, regular way, or, in case no such sale takes place on such day, the average of the
closing bid and asked prices, regular way, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or admitted to trading on the New
York Stock Exchange or, if the Rights are not listed or admitted to trading on the New York Stock
Exchange, as reported in the principal consolidated transaction reporting system with respect to
securities listed on the principal national securities exchange on which the Rights are listed or
admitted to trading or, if the Rights are not listed or admitted to trading on any national
securities exchange, the last quoted price or, if not so quoted, the average of the high bid and
low asked prices in the over-the-counter market, as reported by Nasdaq or such other system then in
use, or, if on any such date the Rights are not quoted by any such organization, the average of the
closing bid and asked prices as furnished by a professional market maker making a market in the
Rights selected by the Board of Directors of the Company. If the Rights are not publicly held or
are not so listed or traded, or are not the subject of available bid and asked quotes, the current
market value of one Right will mean the fair value thereof as determined in good faith by the Board
of Directors of the Company, whose determination will be described in a statement filed with the
Rights Agent.



     (b) The Company will not be required to issue fractions of Preferred Shares (other than
fractions which are integral multiples of one one-hundredth of a Preferred Share) upon exercise of
the Rights or to distribute certificates which evidence fractional Preferred Shares (other than
fractions which are integral multiples of one one-hundredth of a Preferred Share). Fractions of
Preferred Shares in integral multiples of one one-hundredth of a Preferred Share may, at the
election of the Company, be evidenced by depositary receipts pursuant to an appropriate agreement
between the Company and a depositary selected by it, provided that such



23









 







agreement provides that the holders of such depositary receipts have all the rights,
privileges and preferences to which they are entitled as beneficial owners of the Preferred Shares
represented by such depositary receipts. In lieu of fractional Preferred Shares that are not
integral multiples of one one-hundredth of a Preferred Share, the Company may pay to any Person to
whom or which such fractional Preferred Shares would otherwise be issuable an amount in cash equal
to the same fraction of the current market value of one Preferred Share. For purposes of this
Section 14(b), the current market value of one Preferred Share is the closing price of the
Preferred Shares (as determined in the same manner as set forth for Common Shares in the second
sentence of Section 11(d)(i)) for the Trading Day immediately prior to the date of such exercise;
provided, however, that if the closing price of the Preferred Shares cannot be so
determined, the closing price of the Preferred Shares for such Trading Day will be conclusively
deemed to be an amount equal to the closing price of the Common Shares (determined pursuant to the
second sentence of Section 11(d)(i)) for such Trading Day multiplied by one hundred (as such number
may be appropriately adjusted to reflect events such as stock splits, stock dividends,
recapitalizations or similar transactions relating to the Common Shares occurring after the date of
this Agreement); provided further, however, that if neither the Common
Shares nor the Preferred Shares are publicly held or listed or admitted to trading on any national
securities exchange, or the subject of available bid and asked quotes, the current market value of
one Preferred Share will mean the fair value thereof as determined in good faith by the Board of
Directors of the Company, whose determination will be described in a statement filed with the
Rights Agent.



     (c) Following the occurrence of a Triggering Event, the Company will not be required to issue
fractions of Common Shares or other securities issuable upon exercise or exchange of the Rights or
to distribute certificates which evidence any such fractional securities. In lieu of issuing any
such fractional securities, the Company may pay to any Person to whom or which such fractional
securities would otherwise be issuable an amount in cash equal to the same fraction of the current
market value of one such security. For purposes of this Section 14(c), the current market value of
one Common Share or other security issuable upon the exercise or exchange of Rights is the closing
price thereof (as determined in the same manner as set forth for Common Shares in the second
sentence of Section 11(d)(i)) for the Trading Day immediately prior to the date of such exercise or
exchange; provided, however, that if neither the Common Shares nor any such other
securities are publicly held or listed or admitted to trading on any national securities exchange,
or the subject of available bid and asked quotes, the current market value of one Common Share or
such other security will mean the fair value thereof as determined in good faith by the Board of
Directors of the Company, whose determination will mean the fair value thereof as will be described
in a statement filed with the Rights Agent.



     15. Rights of Action. All rights of action in respect of this Agreement, excepting
the rights of action given to the Rights Agent under Section 18, are vested in the respective
registered holders of the Right Certificates (and, prior to the Distribution Date, the registered
holders of the Common Shares); and any registered holder of any Right Certificate (or, prior to the
Distribution Date, of the Common Shares), without the consent of the Rights Agent or of the holder
of any other Right Certificate (or, prior to the Distribution Date, of the holder of any Common
Shares), may in his own behalf and for his own benefit enforce, and may institute and maintain any
suit, action or proceeding against the Company to enforce, or otherwise act in respect of, his
right to exercise the Rights evidenced by such Right Certificate in the manner



24









 







provided in such Right Certificate and in this Agreement. Without limiting the foregoing or
any remedies available to the holders of Rights, it is specifically acknowledged that the holders
of Rights would not have an adequate remedy at law for any breach of this Agreement and will be
entitled to specific performance of the obligations under this Agreement, and injunctive relief
against actual or threatened violations of the obligations of any Person subject to this Agreement.



     16. Agreement of Rights Holders. Every holder of a Right by accepting the same
consents and agrees with the Company and the Rights Agent and with every other holder of a Right
that:



     (a) Prior to the Distribution Date, the Rights are transferable only in connection with the
transfer of the Common Shares;



     (b) After the Distribution Date, the Right Certificates are transferable only on the registry
books of the Rights Agent if surrendered at the principal office of the Rights Agent designated for
such purpose, duly endorsed or accompanied by a proper instrument of transfer;



     (c) The Company and the Rights Agent may deem and treat the person in whose name the Right
Certificate (or, prior to the Distribution Date, the associated Common Share certificate) is
registered as the absolute owner thereof and of the Rights evidenced thereby (notwithstanding any
notations of ownership or writing on the Right Certificate or the associated Common Share
certificate made by anyone other than the Company or the Rights Agent) for all purposes whatsoever,
and neither the Company nor the Rights Agent will be affected by any notice to the contrary;



     (d) Such holder expressly waives any right to receive any fractional Rights and any fractional
securities upon exercise or exchange of a Right, except as otherwise provided in Section 14.



     (e) Notwithstanding anything in this Agreement to the contrary, neither the Company nor the
Rights Agent will have any liability to any holder of a Right or other Person as a result of its
inability to perform any of its obligations under this Agreement by reason of any preliminary or
permanent injunction or other order, decree or ruling issued by a court of competent jurisdiction
or by a governmental, regulatory or administrative agency or commission, or any statute, rule,
regulation or executive order promulgated or enacted by any governmental authority, prohibiting or
otherwise restraining performance of such obligation; provided, however, that the
Company will use its best efforts to have any such order, decree or ruling lifted or otherwise
overturned as soon as possible.



     17. Right Certificate Holder Not Deemed a Stockholder. No holder, as such, of any
Right Certificate will be entitled to vote, receive dividends, or be deemed for any purpose the
holder of Preferred Shares or any other securities of the Company which may at any time be issuable
upon the exercise of the Rights represented thereby, nor will anything contained herein or in any
Right Certificate be construed to confer upon the holder of any Right Certificate, as such, any of
the rights of a stockholder of the Company or any right to vote for the election of Directors or
upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to
any corporate action, or to receive notice of meetings or other actions



25









 







affecting stockholders (except as provided in Section 25), or to receive dividends or
subscription rights, or otherwise, until the Right or Rights evidenced by such Right Certificate
shall have been exercised in accordance with the provisions of this Agreement or exchanged pursuant
to the provisions of Section 24.



     18. Concerning the Rights Agent. (a) The Company will pay to the Rights Agent
reasonable compensation for all services rendered by it hereunder and, from time to time, on demand
of the Rights Agent, its reasonable expenses and counsel fees and other disbursements incurred in
the administration and execution of this Agreement and the exercise and performance of its duties
hereunder. The Company will also indemnify the Rights Agent for, and hold it harmless against, any
loss, liability, suit, action, proceeding or expense, incurred without negligence, bad faith, or
willful misconduct on the part of the Rights Agent, for anything done or omitted to be done by the
Rights Agent in connection with the acceptance and administration of this Agreement, including the
costs and expenses of defending against any claim of liability arising therefrom, directly or
indirectly.



     (b) The Rights Agent will be protected and will incur no liability for or in respect of any
action taken, suffered, or omitted by it in connection with its administration of this Agreement in
reliance upon any Right Certificate or certificate evidencing Preferred Shares or Common Shares or
other securities of the Company, instrument of assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice, direction, consent, certificate, statement or other paper
or document believed by it to be genuine and to be signed, executed, and, where necessary, verified
or acknowledged, by the proper Person or Persons.



     19. Merger or Consolidation or Change of Name of Rights Agent. (a) Any corporation
into which the Rights Agent or any successor Rights Agent may be merged or with which it may be
consolidated, or any corporation resulting from any merger or consolidation to which the Rights
Agent or any successor Rights Agent is a party, or any corporation succeeding to the corporate
trust business of the Rights Agent or any successor Rights Agent, will be the successor to the
Rights Agent under this Agreement without the execution or filing of any paper or any further act
on the part of any of the parties hereto, provided that such corporation would be eligible for
appointment as a successor Rights Agent under the provisions of Section 21. If at the time such
successor Rights Agent succeeds to the agency created by this Agreement any of the Right
Certificates shall have been countersigned but not delivered, any such successor Rights Agent may
adopt the countersignature of the predecessor Rights Agent and deliver such Right Certificates so
countersigned; and if at that time any of the Right Certificates shall not have been countersigned,
any successor Rights Agent may countersign such Right Certificates either in the name of the
predecessor Rights Agent or in the name of the successor Rights Agent; and in all such cases such
Right Certificates will have the full force provided in the Right Certificates and in this
Agreement.



     (b) If at any time the name of the Rights Agent changes and at such time any of the Right
Certificates have been countersigned but not delivered, the Rights Agent may adopt the
countersignature under its prior name and deliver Right Certificates so countersigned; and if at
that time any of the Right Certificates have not been countersigned, the Rights Agent may
countersign such Right Certificates either in its prior name or in its changed name; and in all



26









 







such cases such Right Certificates will have the full force provided in the Right Certificates
and in this Agreement.



     20. Duties of Rights Agent. The Rights Agent undertakes the duties and obligations
imposed by this Agreement upon the following terms and conditions, by all of which the Company and
the holders of Right Certificates, by their acceptance thereof, will be bound:



     (a) The Rights Agent may consult with legal counsel (who may be legal counsel for the
Company), and the opinion of such counsel will be full and complete authorization and protection to
the Rights Agent as to any action taken or omitted by it in good faith and in accordance with such
opinion.



     (b) Whenever in the performance of its duties under this Agreement the Rights Agent deems it
necessary or desirable that any fact or matter be proved or established by the Company prior to
taking or suffering any action hereunder, such fact or matter (unless other evidence in respect
thereof be herein specifically prescribed) may be deemed to be conclusively proved and established
by a certificate signed by any one of the Chairman of the Board, the President, any Vice President,
the Secretary or the Treasurer of the Company and delivered to the Rights Agent, and such
certificate will be full authorization to the Rights Agent for any action taken or suffered in good
faith by it under the provisions of this Agreement in reliance upon such certificate.



     (c) The Rights Agent will be liable hereunder only for its own negligence, bad faith or
willful misconduct.



     (d) The Rights Agent will not be liable for or by reason of any of the statements of fact or
recitals contained in this Agreement or in the Right Certificates (except its countersignature
thereof) or be required to verify the same, but all such statements and recitals are and will be
deemed to have been made by the Company only.



     (e) The Rights Agent will not be under any responsibility in respect of the validity of this
Agreement or the execution and delivery hereof (except the due execution and delivery hereof by the
Rights Agent) or in respect of the validity or execution of any Right Certificate (except its
countersignature thereof); nor will it be responsible for any breach by the Company of any covenant
contained in this Agreement or in any Right Certificate; nor will it be responsible for any
adjustment required under the provisions of Sections 11 or 13 (including any adjustment which
results in Rights becoming void) or responsible for the manner, method or amount of any such
adjustment or the ascertaining of the existence of facts that would require any such adjustment
(except with respect to the exercise of Rights evidenced by Right Certificates after actual notice
of any such adjustment); nor will it by any act hereunder be deemed to make any representation or
warranty as to the authorization or reservation of any shares of stock or other securities to be
issued pursuant to this Agreement or any Right Certificate or as to whether any shares of stock or
other securities will, when issued, be duly authorized, validly issued, fully paid and
nonassessable.



     (f) The Company will perform, execute, acknowledge and deliver or cause to be performed,
executed, acknowledged and delivered all such further and other acts, instruments



27









 







and assurances as may reasonably be required by the Rights Agent for the carrying out or
performing by the Rights Agent of the provisions of this Agreement.



     (g) The Rights Agent is hereby authorized and directed to accept instructions with respect to
the performance of its duties hereunder from any one of the Chairman of the Board, the President,
any Vice President, the Secretary or the Treasurer of the Company, and to apply to such officers
for advice or instructions in connection with its duties, and it will not be liable for any action
taken or suffered to be taken by it in good faith in accordance with instructions of any such
officer.



     (h) The Rights Agent and any stockholder, director, officer or employee of the Rights Agent
may buy, sell or deal in any of the Rights or other securities of the Company or become pecuniarily
interested in any transaction in which the Company may be interested, or contract with or lend
money to the Company or otherwise act as fully and freely as though it were not Rights Agent under
this Agreement. Nothing herein will preclude the Rights Agent from acting in any other capacity
for the Company or for any other Person.



     (i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it
or perform any duty hereunder either itself or by or through its attorneys or agents, and the
Rights Agent will not be answerable or accountable for any act, default, neglect or misconduct of
any such attorneys or agents or for any loss to the Company resulting from any such act, default,
neglect or misconduct, provided reasonable care was exercised in the selection and continued
employment thereof. The Rights Agent will not be under any duty or responsibility to ensure
compliance with any applicable federal or state securities laws in connection with the issuance,
transfer or exchange of Right Certificates.



     (j) If, with respect to any Right Certificate surrendered to the Rights Agent for exercise,
transfer, split up, combination or exchange, either (i) the certificate attached to the form of
assignment or form of election to purchase, as the case may be, has either not been completed or
indicates an affirmative response to clause 1 or 2 thereof, or (ii) any other actual or suspected
irregularity exists, the Rights Agent will not take any further action with respect to such
requested exercise, transfer, split up, combination or exchange without first consulting with the
Company, and will thereafter take further action with respect thereto only in accordance with the
Company’s written instructions.



     21. Change of Rights Agent. The Rights Agent or any successor Rights Agent may resign
and be discharged from its duties under this Agreement upon 30 calendar days’ notice in writing
mailed to the Company and to each transfer agent of the Preferred Shares or the Common Shares by
registered or certified mail, and to the holders of the Right Certificates by first class mail.
The Company may remove the Rights Agent or any successor Rights Agent upon 30 calendar days’ notice
in writing, mailed to the Rights Agent or successor Rights Agent, as the case may be, and to each
transfer agent of the Preferred Shares and the Common Shares by registered or certified mail, and
to the holders of the Right Certificates by first class mail. If the Rights Agent resigns or is
removed or otherwise becomes incapable of acting, the Company will appoint a successor to the
Rights Agent. If the Company fails to make such appointment within a period of 30 calendar days
after giving notice of such removal or after it has been notified in writing of such resignation or
incapacity by the resigning or incapacitated Rights Agent or by the



28









 







holder of a Right Certificate (who will, with such notice, submit his Right Certificate for
inspection by the Company), then the registered holder of any Right Certificate may apply to any
court of competent jurisdiction for the appointment of a new Rights Agent. Any successor Rights
Agent, whether appointed by the Company or by such a court, will be a corporation or other legal
entity organized and doing business under the laws of the United States or of the State of New York
(or of any other state of the United States so long as such corporation is authorized to do
business as a banking institution in the State of New York), in good standing, having a principal
office in the State of New York, which is authorized under such laws to exercise corporate trust or
stock transfer powers and is subject to supervision or examination by federal or state authority
and which has at the time of its appointment as Rights Agent a combined capital and surplus of at
least $50 million. After appointment, the successor Rights Agent will be vested with the same
powers, rights, duties and responsibilities as if it had been originally named as Rights Agent
without further act or deed; but the predecessor Rights Agent will deliver and transfer to the
successor Rights Agent any property at the time held by it hereunder, and execute and deliver any
further assurance, conveyance, act or deed necessary for the purpose. Not later than the effective
date of any such appointment, the Company will file notice thereof in writing with the predecessor
Rights Agent and each transfer agent of the Preferred Shares or the Common Shares, and mail a
notice thereof in writing to the registered holders of the Right Certificates. Failure to give any
notice provided for in this Section 21, however, or any defect therein, will not affect the
legality or validity of the resignation or removal of the Rights Agent or the appointment of the
successor Rights Agent, as the case may be.



     22. Issuance of New Right Certificates. Notwithstanding any of the provisions of this
Agreement or of the Rights to the contrary, the Company may, at its option, issue new Right
Certificates evidencing Rights in such form as may be approved by its Board of Directors to reflect
any adjustment or change in the Purchase Price per share and the number or kind of securities
issuable upon exercise of the Rights made in accordance with the provisions of this Agreement. In
addition, in connection with the issuance or sale by the Company of Common Shares following the
Distribution Date and prior to the Expiration Date, the Company (a) will, with respect to Common
Shares so issued or sold pursuant to the exercise, exchange or conversion of securities (other than
Rights) issued prior to the Distribution Date which are exercisable or exchangeable for, or
convertible into Common Shares, and (b) may, in any other case, if deemed necessary, appropriate or
desirable by the Board of Directors of the Company, issue Right Certificates representing an
equivalent number of Rights as would have been issued in respect of such Common Shares if they had
been issued or sold prior to the Distribution Date, as appropriately adjusted as provided herein as
if they had been so issued or sold; provided, however, that (i) no such Right Certificate will be
issued if, and to the extent that, in its good faith judgment the Board of Directors of the Company
determines that the issuance of such Right Certificate could have a material adverse tax
consequence to the Company or to the Person to whom or which such Right Certificate otherwise would
be issued and (ii) no such Right Certificate will be issued if, and to the extent that, appropriate
adjustment otherwise has been made in lieu of the issuance thereof.



     23. Redemption. (a) Prior to the Expiration Date, the Board of Directors of the
Company may, at its 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



29









 







Date and (ii) Share Acquisition Date. Any such redemption will be effective immediately upon
the action of the Board of Directors of the Company ordering the same, unless such action of the
Board of Directors of the Company expressly provides that such redemption will be effective at a
subsequent time or upon the occurrence or nonoccurrence of one or more specified events (in which
case such redemption will be effective in accordance with the provisions of such action of the
Board of Directors of the Company).



     (b) Immediately upon the effectiveness of the redemption of the Rights as provided in Section
23(a), and without any further action and without any notice, the right to exercise the Rights will
terminate and the only right thereafter of the holders of Rights will be to receive the Redemption
Price, without interest thereon. Promptly after the effectiveness of the redemption of the Rights
as provided in Section 23(a), the Company will publicly announce such redemption and, within 10
calendar days thereafter, will give notice of such redemption to the holders of the
then-outstanding Rights by mailing such notice to all such holders at their last addresses as they
appear upon the registry books of the Company; provided, however, that the failure
to give, or any defect in, any such notice will not affect the validity of the redemption of the
Rights. Any notice that is mailed in the manner herein provided will be deemed given, whether or
not the holder receives the notice. The notice of redemption mailed to the holders of Rights will
state the method by which the payment of the Redemption Price will be made. The Company may, at
its option, pay the Redemption Price in cash, Common Shares (based upon the current per share
market price of the Common Shares (determined pursuant to Section 11(d)) at the time of
redemption), or any other form of consideration deemed appropriate by the Board of Directors of the
Company (based upon the fair market value of such other consideration, determined by the Board of
Directors of the Company in good faith) or any combination thereof. The Company may, at its
option, combine the payment of the Redemption Price with any other payment being made concurrently
to holders of Common Shares and, to the extent that any such other payment is discretionary, may
reduce the amount thereof on account of the concurrent payment of the Redemption Price. If legal
or contractual restrictions prevent the Company from paying the Redemption Price (in the form of
consideration deemed appropriate by the Board of Directors) at the time of redemption, the Company
will pay the Redemption Price, without interest, promptly after such time as the Company ceases to
be so prevented from paying the Redemption Price.



     24. Exchange. (a) The Board of Directors of the Company may, at its option, at any
time after the later of the Share Acquisition Date and the Distribution Date, exchange all or part
of the then-outstanding and exercisable Rights (which will not include Rights that have become void
pursuant to the provisions of Section 11(a)(ii)) 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 Record Date (such exchange ratio being hereinafter referred
to as the “Exchange Ratio”). Any such exchange will be effective immediately upon the action of
the Board of Directors of the Company ordering the same, unless such action of the Board of
Directors of the Company expressly provides that such exchange will be effective at a subsequent
time or upon the occurrence or nonoccurrence of one or more specified events (in which case such
exchange will be effective in accordance with the provisions of such action of the Board of
Directors of the Company). Notwithstanding the foregoing, the Board of Directors of the Company
will not be empowered to effect such exchange at any time after any Person (other than the Company
or any Related Person), who or which, together with all Affiliates and



30









 







Associates of such Person, becomes the Beneficial Owner of 50% or more of the then-outstanding
Common Shares.



     (b) Immediately upon the effectiveness of the exchange of any Rights as provided in Section
24(a), and without any further action and without any notice, the right to exercise such Rights
will terminate and the only right with respect to such Rights thereafter of the holder of such
Rights will 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 effectiveness of the exchange of
any Rights as provided in Section 24(a), the Company will publicly announce such exchange and,
within 10 calendar days thereafter, will give notice of 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 will not
affect the validity of such exchange. Any notice that is mailed in the manner herein provided will
be deemed given, whether or not the holder receives the notice. Each such notice of exchange will
state the method by which the exchange of the Common 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
will 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.



     (c) In any exchange pursuant to this Section 24, the Company, at its option, may substitute
for any Common Share exchangeable for a Right (i) equivalent common shares (as such term is used in
Section 11(a)(iii)), (ii) cash, (iii) debt securities of the Company, (iv) other assets, or (v) any
combination of the foregoing, in any event having an aggregate value, as determined in good faith
by the Board of Directors of the Company (whose determination will be described in a statement
filed with the Rights Agent), equal to the current market value of one Common Share (determined
pursuant to Section 11(d)) on the Trading Day immediately preceding the date of the effectiveness
of the exchange pursuant to this Section 24.



     25. Notice of Certain Events. (a) If, after the Distribution Date, the Company
proposes (i) to pay any dividend payable in stock of any class to the holders of Preferred Shares
or to make any other distribution to the holders of Preferred Shares (other than a regular periodic
cash dividend), (ii) to offer to the holders of Preferred Shares rights, options or warrants to
subscribe for or to purchase any additional Preferred Shares or shares of stock of any class or any
other securities, rights or options, (iii) to effect any reclassification of its Preferred Shares
(other than a reclassification involving only the subdivision of outstanding Preferred Shares),
(iv) to effect any consolidation or merger into or with, or to effect any sale or other transfer
(or to permit one or more of its Subsidiaries to effect any sale or other transfer), in one or more
transactions, of assets or earning power (including, without limitation, securities creating any
obligation on the part of the Company and/or any of its Subsidiaries) representing more than 50% of
the assets and earning power of the Company and its Subsidiaries, taken as a whole, to any other
Person or Persons other than the Company or one or more of its wholly owned Subsidiaries, (v) to
effect the liquidation, dissolution or winding up of the Company, or (vi) to declare or pay any
dividend on the Common Shares payable in Common Shares or to effect a subdivision, combination or
reclassification of the Common Shares then, in each such case, the Company will give to each holder
of a Right Certificate, to the extent feasible and in accordance



31









 





with Section 26, a notice of such proposed action, which specifies the record date for the
purposes of such stock dividend, distribution or offering of rights, options or warrants, or the
date on which such reclassification, consolidation, merger, sale, transfer, liquidation,
dissolution or winding up is to take place and the date of participation therein by the holders of
the Common Shares and/or Preferred Shares, if any such date is to be fixed, and such notice will be
so given, in the case of any action covered by clause (i) or (ii) above, at least 10 calendar days
prior to the record date for determining holders of the Preferred Shares for purposes of such
action, and, in the case of any such other action, at least 10 calendar days prior to the date of
the taking of such proposed action or the date of participation therein by the holders of the
Common Shares and/or Preferred Shares, whichever is the earlier.



     (b) In case any Triggering Event occurs, then, in any such case, the Company will as soon as
practicable thereafter give to the Rights Agent and each holder of a Right Certificate, in
accordance with Section 26, a notice of the occurrence of such event, which specifies the event and
the consequences of the event to holders of Rights.



     26. Notices. (a) Notices or demands authorized by this Agreement to be given or made
by the Rights Agent or by the holder of any Right Certificate to or on the Company will be
sufficiently given or made if sent by first class mail, postage prepaid, addressed (until another
address is filed in writing with the Rights Agent) as follows:



                    USG Corporation

                    125 South Franklin Street

                    Chicago, Illinois 60606-4678

                    Attention: ___





     (b) Subject to the provisions of Section 21 hereof, any notice or demand authorized by this
Agreement to be given or made by the Company or by the holder of any Right Certificate to or on the
Rights Agent will be sufficiently given or made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing with the Company) as to the address specified
on the signature page hereof:



     (c) Notices or demands authorized by this Agreement to be given or made by the Company or the
Rights Agent to the holder of any Right Certificate (or, if prior the Distribution Date, to the
holder of any certificate evidencing Common Shares) will be sufficiently given or made if sent by
first class mail, postage prepaid, addressed to such holder at the address of such holder as shown
on the registry books of the Company.



     27. Supplements and Amendments. Prior to the time at which the Rights cease to be
redeemable pursuant to Section 23, and subject to the penultimate sentence of this Section 27 or
such later date as the Board of Directors may determine by resolution adopted in the exercise of
its business judgment, the Company may in its sole and absolute discretion, and the Rights Agent
will if the Company so directs, supplement or amend any provision of this Agreement in any respect
without the approval of any holders of Rights or Common Shares. From and after the time at which
the Rights cease to be redeemable pursuant to Section 23, and subject to the penultimate sentence
of this Section 27, the Company may, and the Rights Agent will if the Company so directs,
supplement or amend this Agreement without the approval of any holders



32









 






	of Rights or Common Shares in order (i) to cure any ambiguity, (ii) to correct or supplement
any provision contained herein which may be defective or inconsistent with any other provisions
herein, (iii) to shorten or lengthen any time period hereunder, or (iv) to supplement or amend the
provisions hereunder in any manner which the Company may deem desirable; provided,
however, that no such supplement or amendment shall adversely affect the interests of the
holders of Rights as such (other than an Acquiring Person or an Affiliate or Associate of an
Acquiring Person), and no such supplement or amendment shall cause the Rights again to become
redeemable or cause this Agreement again to become supplementable or amendable otherwise than in
accordance with the provisions of this sentence. Without limiting the generality or effect of the
foregoing, this Agreement may be supplemented or amended to provide for such voting powers for the
Rights and such procedures for the exercise thereof, if any, as the Board of Directors of the
Company may determine to be appropriate. Upon the delivery of a certificate from an officer of the
Company which states that the proposed supplement or amendment is in compliance with the terms of
this Section 27, the Rights Agent will execute such supplement or amendment; provided, however,
that the failure or refusal of the Rights Agent to execute such supplement or amendment will not
affect the validity of any supplement or amendment adopted by the Board of Directors of the
Company, any of which will be effective in accordance with the terms thereof. Notwithstanding
anything in this Agreement to the contrary, no supplement or amendment may be made which decreases
the stated Redemption Price to an amount less than $0.001 per Right. Notwithstanding anything in
this Agreement to the contrary, the limitations on the ability of the Board of Directors to amend
this Agreement set forth in this Section 27 shall not affect the power or ability of the Board of
Directors to take any other action that is consistent with its fiduciary duties under Delaware law,
including without limitation accelerating or extending the Expiration Date or making any other
amendment to this Agreement that is permitted by this Section 27 or adopting a new stockholder
rights plan with such terms as the Board of Directors determines in its sole discretion to be
appropriate.





     28. Successors; Certain Covenants. All the covenants and provisions of this Agreement
by or for the benefit of the Company or the Rights Agent will be binding on and inure to the
benefit of their respective successors and assigns hereunder.



     29. Benefits of This Agreement. Nothing in this Agreement will be construed to give
to any Person other than the Company, the Rights Agent, and the registered holders of the Right
Certificates (and, prior to the Distribution Date, the Common Shares) any legal or equitable right,
remedy or claim under this Agreement. This Agreement will be for the sole and exclusive benefit of
the Company, the Rights Agent, and the registered holders of the Right Certificates (or prior to
the Distribution Date, the Common Shares).



     30. Governing Law. This Agreement, each Right and each Right Certificate issued
hereunder will be deemed to be a contract made under the internal substantive laws of the State of
Delaware and for all purposes will be governed by and construed in accordance with the internal
substantive laws of such State applicable to contracts to be made and performed entirely within
such State.



     31. Severability. If any term, provision, covenant or restriction of this Agreement
is held by a court of competent jurisdiction or other authority to be invalid, void or
unenforceable,



33









 







the remainder of the terms, provisions, covenants and restrictions of this Agreement will
remain in full force and effect and will in no way be affected, impaired or invalidated; provided,
however, that nothing contained in this Section 31 will affect the ability of the Company under the
provisions of Section 27 to supplement or amend this Agreement to replace such invalid, void or
unenforceable term, provision, covenant or restriction with a legal, valid and enforceable term,
provision, covenant or restriction.



     32. Descriptive Headings, Etc. Descriptive headings of the several Sections of this
Agreement are inserted for convenience only and will not control or affect the meaning or
construction of any of the provisions hereof. Unless otherwise expressly provided, references
herein to Articles, Sections and Exhibits are to Articles, Sections and Exhibits of or to this
Agreement.



     33. Determinations and Actions by the Board. For all purposes of this Agreement, any
calculation of the number of Common Shares outstanding at any particular time, including for
purposes of determining the particular percentage of such outstanding Common Shares of which any
Person is the Beneficial Owner, will be made in accordance with, as applicable, the last sentence
of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange Act or the
provisions of Section 382 of the Code, or any successor provision or replacement provision. The
Board of Directors of the Company will have the exclusive power and authority to administer this
Agreement and to exercise all rights and powers specifically granted to the Board of Directors of
the Company or to the Company, or as may be necessary or advisable in the administration of this
Agreement, including without limitation the right and power to (i) interpret the provisions of this
Agreement (including without limitation Section 27, this Section 33 and other provisions hereof
relating to its powers or authority hereunder) and (ii) make all determinations deemed necessary or
advisable for the administration of this Agreement (including without limitation any determination
contemplated by Section 1(a) or any determination as to whether particular Rights shall have become
void). All such actions, calculations, interpretations and determinations (including, for purposes
of clause (y) below, any omission with respect to any of the foregoing) which are done or made by
the Board of Directors of the Company in good faith will (x) be final, conclusive and binding on
the Company, the Rights Agent, the holders of the Rights and all other parties and (y) not subject
the Board of Directors of the Company to any liability to any Person, including without limitation
the Rights Agent and the holders of the Rights.



     34. Counterparts. This Agreement may be executed in any number of counterparts and
each of such counterparts will for all purposes be deemed to be an original, and all such
counterparts will together constitute but one and the same instrument.



[Signatures on Following Page]





34










 






     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	USG CORPORATION

 	 
	 	By: 	/s/ Stanley Ferguson	 
	 	 	Name:  	Stanley L. Ferguson	 
	 	 	Title:  	Executive Vice President and General
Counsel	 
	 



	 	 	 	 	 
	 	RIGHTS AGENT;

COMPUTERSHARE
INVESTOR SERVICES LLC

 	 
	 	By: 	/s/
Keith Bradley	 
	 	 	Name:  	Keith Bradley	 
	 	 	Title:  	Director, Operations	 
	 



	 	 	 	 	 
	 	Rights Agent Legal Name and
Address for Purposes of Notices:

 	 
	 	Computershare
Investor Services LLC	 
	 	2
North LaSalle Street	 
	 	Chicago,
Illinois 60602	 
	 	Attention:
Don Koslow	 
	 	 	 	 
	 	 	 	 
	 



35









 





EXHIBIT A




FORM OF RIGHT CERTIFICATE




			
	Certificate No. R-_______
	 	_______Rights






NOT EXERCISABLE AFTER THE EXPIRATION DATE (AS SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT). THE
RIGHTS ARE SUBJECT TO REDEMPTION, EXCHANGE AND AMENDMENT AT THE OPTION OF THE COMPANY, ON THE TERMS
SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES SPECIFIED IN THE RIGHTS AGREEMENT,
RIGHTS THAT ARE OR WERE BENEFICIALLY OWNED BY AN ACQUIRING PERSON OR AN AFFILIATE OR AN ASSOCIATE
OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT) OR A TRANSFEREE THEREOF
MAY BECOME NULL AND VOID.



Right Certificate




USG CORPORATION




     This certifies that _______, or registered assigns, is the registered owner of the
number of Rights set forth above, each of which entitles the owner thereof, subject to the terms,
provisions, and conditions of the Reorganization Rights Plan, dated as of January 30, 2006 (the
“Rights Agreement”), adopted by USG Corporation (the “Company”) to purchase from the Company at any
time after the Distribution Date (as such term is defined in the Rights Agreement) and prior to
5:00 p.m. (New York City time) on the Expiration Date (as such term is defined in the Rights
Agreement) at the principal office or offices of the Rights Agent designated for such purpose, one
one-hundredth of a fully paid nonassessable share of Junior Participating Preferred Stock, Series
D, par value $1.00 per share (the “Preferred Shares”), of the Company, at a purchase price of
$200.00 per one one-hundredth of a Preferred Share (the “Purchase Price”), upon presentation and
surrender of this Right Certificate with the Form of Election to Purchase and related Certificate
duly executed. If this Right Certificate is exercised in part, the holder will be entitled to
receive upon surrender hereof another Right Certificate or Right Certificates for the number of
whole Rights not exercised. The number of Rights evidenced by this Right Certificate (and the
number of one one-hundredths of a Preferred Share which may be purchased upon exercise thereof) set
forth above, and the Purchase Price set forth above, are the number and Purchase Price as of the
date of the Rights Agreement, based on the Preferred Shares as constituted at such date.



     As provided in the Rights Agreement, the Purchase Price and/or the number and/or kind of
securities issuable upon the exercise of the Rights evidenced by this Right Certificate are subject
to adjustment upon the occurrence of certain events.



     This Right Certificate is subject to all of the terms, provisions and conditions of the Rights
Agreement, which terms, provisions and conditions are hereby incorporated herein by reference and
made a part hereof and to which Rights Agreement reference is hereby made for a full description of
the rights, limitations of rights, obligations, duties and immunities of the



A-1









 







Rights Agent, the Company and the holders of the Right Certificates, which limitations of
rights include the temporary suspension of the exercisability of the Rights under the circumstances
specified in the Rights Agreement. Copies of the Rights Agreement are on file at the
above-mentioned office of the Rights Agent and can be obtained from the Company without charge upon
written request therefor. Terms used herein with initial capital letters and not defined herein
are used herein with the meanings ascribed thereto in the Rights Agreement.



     Pursuant to the Rights Agreement, from and after the occurrence of a Flip-in Event, any Rights
that are Beneficially Owned by (i) any Acquiring Person (or any Affiliate or Associate of any
Acquiring Person), (ii) a transferee of any Acquiring Person (or any such Affiliate or Associate)
who becomes a transferee after the occurrence of a Flip-in Event, or (iii) a transferee of any
Acquiring Person (or any such Affiliate or Associate) who became a transferee prior to or
concurrently with the Flip-in Event pursuant to either (a) a transfer from an Acquiring Person to
holders of its equity securities or to any Person with whom it has any continuing agreement,
arrangement or understanding regarding the transferred Rights or (b) a transfer which the Board of
Directors of the Company has determined is part of a plan, arrangement or understanding which has
the purpose or effect of avoiding certain provisions of the Rights Agreement, and subsequent
transferees of any of such Persons, will be void without any further action and any holder of such
Rights will thereafter have no rights whatsoever with respect to such Rights under any provision of
the Rights Agreement. From and after the occurrence of a Flip-in Event, no Right Certificate will
be issued that represents Rights that are or have become void pursuant to the provisions of the
Rights Agreement, and any Right Certificate delivered to the Rights Agent that represents Rights
that are or have become void pursuant to the provisions of the Rights Agreement will be canceled.



     This Right Certificate, with or without other Right Certificates, may be transferred, split
up, combined or exchanged for another Right Certificate or Right Certificates entitling the holder
to purchase a like number of one one-hundredths of a Preferred Share (or other securities, as the
case may be) as the Right Certificate or Right Certificates surrendered entitled such holder (or
former holder in the case of a transfer) to purchase, upon presentation and surrender hereof at the
principal office of the Rights Agent designated for such purpose, with the Form of Assignment (if
appropriate) and the related Certificate duly executed.



     Subject to the provisions of the Rights Agreement, the Rights evidenced by this Certificate
may be redeemed by the Company at its option at a redemption price of $0.001 per Right or may be
exchanged in whole or in part. The Rights Agreement may be supplemented and amended by the
Company, as provided therein.



     The Company is not required to issue fractions of Preferred Shares (other than fractions which
are integral multiples of one one-hundredth of a Preferred Share, which may, at the option of the
Company, be evidenced by depositary receipts) or other securities issuable upon the exercise of any
Right or Rights evidenced hereby. In lieu of issuing such fractional Preferred Shares or other
securities, the Company may make a cash payment, as provided in the Rights Agreement.



     No holder of this Right Certificate, as such, will be entitled to vote or receive dividends or
be deemed for any purpose the holder of the Preferred Shares or of any other securities of the



A-2









 







Company which may at any time be issuable upon the exercise of the Right or Rights represented
hereby, nor will anything contained herein or in the Rights Agreement be construed to confer upon
the holder hereof, as such, any of the rights of a stockholder of the Company or any right to vote
for the election of directors or upon any matter submitted to stockholders at any meeting thereof,
or to give or withhold consent to any corporate action, or to receive notice of meetings or other
actions affecting stockholders (except as provided in the Rights Agreement), or to receive
dividends or subscription rights, or otherwise, until the Right or Rights evidenced by this Right
Certificate have been exercised in accordance with the provisions of the Rights Agreement.



     This Right Certificate will not be valid or obligatory for any purpose until it has been
countersigned by the Rights Agent.



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



	 	 	 	 	 
	ATTEST: 	    USG CORPORATION

 	 
	 	    By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	Countersigned:

 	 
	 	By:  	 	 
	 	 	Authorized Signature 	 
	 	 	 	 
	 



A-3









 





Form of Reverse Side of Right Certificate




FORM OF ASSIGNMENT




(To be executed by the registered holder if such

holder desires to transfer the Right Certificate)





     FOR VALUE RECEIVED, ___hereby sells, assigns and transfers unto



 




(Please print name and address of transferee)



 



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



Dated: _______, _______




	 	 	 	 	 
	 	 	 
	 	  	
 	 
	 	 	Signature 	 
	 	 	 	 
	 


Signature Guaranteed: _______




A-4









 





CERTIFICATE





     The undersigned hereby certifies by checking the appropriate boxes that:



     (1) the Rights evidenced by this Right Certificate [ ] are [ ] are not being sold, assigned,
transferred, split up, combined or exchanged by or on behalf of a Person who is or was an Acquiring
Person or an Affiliate or Associate of any such Person (as such terms are defined in the Rights
Agreement);



     (2) after due inquiry and to the best knowledge of the undersigned, it [ ] did [ ] did not
acquire the Rights evidenced by this Right Certificate from any Person who is, was or became an
Acquiring Person or an Affiliate or Associate of an Acquiring Person.



Dated: _______, _______




	 	 	 	 	 
	 	 	 
	 	  	
 	 
	 	 	Signature 	 
	 	 	 	 
	 



A-5









 





FORM OF ELECTION TO PURCHASE




(To be executed if holder desires to

exercise the Right Certificate)




To USG Corporation:





     The undersigned hereby irrevocably elects to exercise ___Rights represented by this
Right Certificate to purchase the one one-hundredths of a Preferred Share or other securities
issuable upon the exercise of such Rights and requests that certificates for such securities be
issued in the name of and delivered to:


Please insert social security

or other identifying number: _______




 




(Please print name and address)



 




If such number of Rights is not all the Rights evidenced by this Right Certificate, a new Right
Certificate for the balance remaining of such Rights will be registered in the name of and
delivered to:



Please insert social security

or other identifying number: _______




 




(Please print name and address)




 



Dated: _______, _______




	 	 	 	 	 
	 	 	 
	 	  	
 	 
	 	 	Signature 	 
	 	 	 	 
	 


Signature Guaranteed: _______




A-6









 





CERTIFICATE





     The undersigned hereby certifies by checking the appropriate boxes that:



     (1) the Rights evidenced by this Right Certificate [ ] are [ ] are not being exercised by or
on behalf of a Person who is or was an Acquiring Person or an Affiliate or Associate of any such
Person (as such terms are defined pursuant to the Rights Agreement);



     (2) after due inquiry and to the best knowledge of the undersigned, it [ ] did [ ] did not
acquire the Rights evidenced by this Right Certificate from any Person who is, was, or became an
Acquiring Person or an Affiliate or Associate of an Acquiring Person.


Dated: _______, _______




	 	 	 	 	 
	 	 	 
	 	  	
 	 
	 	 	Signature 	 
	 	 	 	 
	 



NOTICE





     Signatures on the foregoing Form of Assignment and Form of Election to Purchase and in the
related Certificates must correspond to the name as written upon the face of this Right Certificate
in every particular, without alteration or enlargement or any change whatsoever.



     Signatures must be guaranteed by an eligible guarantor institution (banks, stockbrokers,
savings and loan associations and credit unions with membership in an approved medallion signature
program) pursuant to Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended.




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