Exhibit 4.4




 





 


 


MoSys, Inc.


 


and


 


Wells Fargo Bank, N.A.


Rights Agent


 


 


Rights Agreement


 


 


Dated as of November 10, 2010




 


 





 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  PAGE

  
	
  SECTION 1.CERTAIN
  DEFINITIONS

  	
   

  	
  1

  
	
  SECTION 2. APPOINTMENT OF RIGHTS AGENT

  	
   

  	
  5

  
	
  SECTION 3. ISSUE OF RIGHT CERTIFICATES

  	
   

  	
  5

  
	
  SECTION 4. FORM OF RIGHT CERTIFICATES

  	
   

  	
  7

  
	
  SECTION 5. COUNTERSIGNATURE AND REGISTRATION

  	
   

  	
  7

  
	
  SECTION 6. TRANSFER, SPLIT UP, COMBINATION
  AND EXCHANGE OF RIGHT CERTIFICATES; MUTILATED, DESTROYED, LOST OR STOLEN
  RIGHT CERTIFICATES

  	
   

  	
  7

  
	
  SECTION 7. EXERCISE OF RIGHTS; PURCHASE
  PRICE; EXPIRATION DATE OF RIGHTS

  	
   

  	
  8

  
	
  SECTION 8. CANCELLATION AND DESTRUCTION OF
  RIGHT CERTIFICATES

  	
   

  	
  9

  
	
  SECTION 9. AVAILABILITY OF PREFERRED SHARES

  	
   

  	
  9

  
	
  SECTION 10. PREFERRED SHARES RECORD DATE

  	
   

  	
  10

  
	
  SECTION 11. ADJUSTMENT OF PURCHASE PRICE,
  NUMBER OF SHARES OR NUMBER OF RIGHTS

  	
   

  	
  10

  
	
  SECTION 12. CERTIFICATE OF ADJUSTMENT

  	
   

  	
  17

  
	
  SECTION 13. CONSOLIDATED, MERGER OR SALE OR
  TRANSFER OF ASSETS OR EARNING POWER

  	
   

  	
  17

  
	
  SECTION 14. FRACTIONAL RIGHTS AND FRACTIONAL
  SHARES

  	
   

  	
  19

  
	
  SECTION 15. RIGHTS OF ACTION

  	
   

  	
  20

  
	
  SECTION 16. AGREEMENT OF RIGHT HOLDERS

  	
   

  	
  21

  
	
  SECTION 17. RIGHT CERTIFICATE HOLDER NOT
  DEEMED A STOCKHOLDER

  	
   

  	
  21

  
	
  SECTION 18. CONCERNING THE RIGHTS AGENT

  	
   

  	
  22

  
	
  SECTION 19. MERGER OR CONSOLIDATION OR CHANGE
  OF NAME OF RIGHTS AGENT

  	
   

  	
  22

  
	
  SECTION 20. DUTIES OF RIGHTS AGENT

  	
   

  	
  23

  
	
  SECTION 21. CHANGE OF RIGHTS AGENT

  	
   

  	
  24

  
	
  SECTION 22. ISSUANCE OF NEW RIGHT
  CERTIFICATES

  	
   

  	
  25

  
	
  SECTION 23. REDEMPTION

  	
   

  	
  25

  
	
  SECTION 24. EXCHANGE

  	
   

  	
  26

  
	
  SECTION 25. NOTICE OF CERTAIN EVENTS

  	
   

  	
  27

  
	
  SECTION 26. NOTICES

  	
   

  	
  27

  
	
  SECTION 27. SUPPLEMENTS AND AMENDMENTS

  	
   

  	
  28

  



 


i

















 


TABLE OF CONTENTS


(Continued)


 


	
   

  	
   

  	
  PAGE

  
	
   

  	
   

  	
   

  
	
  SECTION 28. REGISTRATION OF SECURITIES

  	
   

  	
  28

  
	
  SECTION 29. DETERMINATIONS AND ACTIONS BY THE
  BOARD OF DIRECTORS

  	
   

  	
  28

  
	
  SECTION 30. SUCCESSORS

  	
   

  	
  29

  
	
  SECTION 31. BENEFITS OF THIS AGREEMENT

  	
   

  	
  29

  
	
  SECTION 32. SEVERABILITY

  	
   

  	
  29

  
	
  SECTION 33. GOVERNING LAW

  	
   

  	
  29

  
	
  SECTION 34. COUNTERPARTS

  	
   

  	
  29

  
	
  SECTION 35. DESCRIPTIVE HEADINGS

  	
   

  	
  29

  



 


ii

















 


RIGHTS AGREEMENT


 


This
Rights Agreement is made as of November 10, 2010 (the “Effective Date”) by and between
MoSys, Inc., a Delaware corporation (the “Company”), and Wells Fargo Bank, N.A. (the “Rights Agent”).


 


Pursuant
to this Agreement, the Board of Directors of the Company has authorized and
declared a dividend of one preferred share purchase right (a “Right”) for each
Common Share (as hereinafter defined) of the Company outstanding on the
Effective Date (the “Record
Date”), each Right representing the right to purchase one
one-thousandth of a Preferred Share (as hereinafter defined), upon the terms
and subject to the conditions herein set forth, and has further authorized and
directed the issuance of one Right with respect to each Common Share that shall
become outstanding between the Record Date and the earliest of the Distribution
Date, the Redemption Date and the Final Expiration Date (as such terms are
hereinafter defined).


 


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


 


Section 1.                                          Certain Definitions


 


For
purposes of this Agreement, the following terms have the meanings indicated:


 


(a)                                  “Acquiring Person” shall mean any Person (as
such term is hereinafter defined) who or which, together with all Affiliates
and Associates (as such terms are hereinafter defined) of such Person, shall be
the Beneficial Owner (as such term is hereinafter defined) of 15% or in the
case of a Grandfathered Stockholder 20%, or more of the Common Shares then outstanding,
but shall not include the Company, any Subsidiary (as such term is hereinafter
defined) of the Company, any employee benefit plan of the Company or of any
Subsidiary of the Company, or of any entity holding Common Shares for or
pursuant to the terms of any such employee benefit plan.  Notwithstanding the foregoing, (1)  no
Person shall become an “Acquiring Person” as the result of an acquisition of
Common Shares by the Company which, by reducing the number of shares
outstanding, increases the proportionate number of shares beneficially owned by
such Person to 15% (or in the case of a Grandfathered Stockholder 20%) or more
of the Common Shares of the Company then outstanding; provided, however,
that if a Person shall become the Beneficial Owner of 15% (or in the case of a
Grandfathered Stockholder 20%) or more of the Common Shares then outstanding by
reason of share purchases by the Company and shall, after such share purchases
by the Company, become the Beneficial Owner of any additional Common Shares,
then such Person shall be deemed to be an “Acquiring Person”; and (2)  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 paragraph, has become such inadvertently, and such
Person divests as promptly as practicable a sufficient number of Common Shares
so that such Person would no longer be an “Acquiring Person,” as defined
pursuant to the foregoing provisions of this paragraph, then such Person shall
not be deemed to have become an “Acquiring Person” for any purposes of this
Agreement.


 


Notwithstanding
anything in this Agreement that might otherwise be deemed to the contrary, none
of the I&S Parties, individually or collectively, shall be deemed to be an
Acquiring Person as 


 

















 


long
as none of the Common Shares held by any of the I&S Parties are acquired or
held with a purpose or effect of changing or influencing control of the
Company, or in connection with or as a participant in any transaction having
that purpose or effect, as determined in the sole discretion of the Board of
Directors of the Company.  This exclusion
is limited to Common Shares as to which I&S parties share dispositive power
but have only limited voting power of the type described in SEC Rule 13d-3(d)(2).  Any single account holder or retail customer
of I&S, and any single broker at I&S with respect to such broker’s
personal trading account, shall remain subject to the 15% limitation on
Beneficial Ownership contained in this Section 1(a).  For purposes of this paragraph shares of
Common Stock as to which an I&S Party has, or I&S Parties have,
dispositive power and only non-discretionary voting power (as defined in SEC Rule 13d-3(d)(2)),
with no “direct pecuniary interest” or “indirect pecuniary interest” (as
defined under SEC Rule 16a-1(a)) therein, shall be excluded from the
calculation of Beneficial Ownership under Section 1(a).


 


(b)                                 “Adjustment Shares” shall have the
meaning set forth in Section 11(a)(ii)(A) hereof.


 


(c)                                  “Affiliate” and “Associate” shall
have the respective meanings ascribed to such terms in Rule 12b-2 of the
General Rules and Regulations under the Securities Exchange Act of 1934,
as amended (the “Exchange Act”),
as in effect on the date of this Agreement.


 


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


 


(i)                                     which such Person or any of
such Person’s Affiliates or Associates, directly or indirectly, has the right
to vote or dispose of or otherwise has “beneficial ownership” of (as determined
pursuant to Rule 13d-3 promulgated under the Exchange Act);


 


(ii)                                  which such Person or any of
such Person’s Affiliates or Associates has: (A) the right to acquire
(whether such right is exercisable immediately or only after the passage of
time) pursuant to any agreement, arrangement or understanding (other than
customary agreements with and between underwriters and selling group members
with respect to a bona fide public offering of securities), or upon the
exercise of conversion rights, exchange rights, rights (other than these
Rights), warrants or options, or otherwise; provided, however,
that a Person shall not be deemed the Beneficial Owner of, or to beneficially
own, securities tendered pursuant to a tender or exchange offer made pursuant
to and in accordance with the applicable rules and regulations promulgated
under the Exchange Act by or on behalf of such Person or any of such Person’s
Affiliates or Associates until such tendered securities are accepted for
purchase or exchange; or (B) the right to vote pursuant to any agreement,
arrangement or understanding; provided, however, that a Person
shall not be deemed the Beneficial Owner of, or to beneficially own, (x) any
security if the agreement, arrangement or understanding to vote such security (1) arises
solely from a revocable proxy or consent given to such Person in response to a
public proxy or consent solicitation made pursuant to, and in accordance with,
the applicable rules and regulations promulgated under the Exchange Act
and (2) is not also then reportable on Schedule 13D under the Exchange Act
(or any comparable or successor report), (y) at any time prior to the
occurrence of a Trigger Event, securities issuable upon exercise of Rights, or (z) from
and after the occurrence of a Trigger Event, securities issuable upon exercise
of Rights, which Rights were acquired by such Person or such Person’s
Affiliates or Associates prior to the Distribution Date or pursuant to Section 3(a) or
24 hereof or pursuant to Section 11(i) hereof in connection with an
adjustment made with respect to any such Rights;


 


2
















 


(iii)                               which are beneficially
owned, directly or indirectly, by any other Person with which such Person or
any of such Person’s Affiliates or Associates has any agreement, arrangement or
understanding (other than customary agreements with and between underwriters
and selling group members with respect to a bona fide public offering of
securities) for the purpose of acquiring, holding, voting (except to the extent
contemplated by the proviso in Section l(c)(ii)(B)) or disposing of any
securities of the Company; provided, however, that in no case
shall an officer or director of the Company be deemed the Beneficial Owner of
securities held of record by the trustee of any employee benefit plan of the
Company or any Subsidiary of the Company for the benefit of any employee of the
Company or any Subsidiary of the Company, other than the officer or director,
by reason of any influence that such officer or director may have over the
voting of the securities held in the plan. 
Notwithstanding anything in this definition of Beneficial Ownership to
the contrary, the phrase “then outstanding,” when used with reference to a
Person’s Beneficial Ownership of securities of the Company, shall mean the
number of such securities then issued and outstanding together with the number
of such securities not then actually issued and outstanding which such Person
would be deemed to own beneficially hereunder; or


 


(iv)                              which are securities
underlying a derivative transaction entered into by a Person, or derivative
securities acquired by a Person, which give such Person the opportunity to
profit or share in any profit derived from any increase in the value of
securities of the Company due to the fact that the value of the derivative
transaction is explicitly determined by reference to the price or value of
securities in the Company, without regard to whether (i) such derivative
securities convey any voting rights in securities in the Company to such
Person, (ii) such derivative securities are required to be, or capable of
being, settled through delivery of securities of the Company, or (iii) such
Person may have entered into other transactions that hedge the economic effect
of such derivative securities.


 


(e)                                  “Book Entry” shall mean an
uncertificated book entry for Common Shares.


 


(f)                                    “Business Day” shall mean any day other
than a Saturday, a Sunday, or a day on which banking institutions in the States
of California and Minnesota are authorized or obligated by law or executive
order to close.


 


(g)                                 “Close of business” on any given date shall mean
5:00 P.M., Santa Clara, California time, on such date; provided, however,
that if such date is not a Business Day it shall mean 5:00 P.M., Santa
Clara, California time, on the next succeeding Business Day.


 


(h)                                 “Common Shares” shall mean the shares of
common stock, $0.01 par value per share, of the Company; provided  that,
when used with reference to any Person other than the Company, “Common Shares”
shall mean the capital stock (or equity interest) with the greatest voting
power of such other Person or, if such other Person is a Subsidiary of another
Person, the Person or Persons which ultimately control such first-mentioned
Person.


 


(i)                                     “Current Value” shall have the meaning set
forth in Section 11(a)(iv) hereof.


 


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


 


(k)                                  “Effective Date” shall have
the meaning set forth in the preamble.


 


3

















 


(l)                                     “Equivalent Preferred Shares” shall have the
meaning set forth in Section 11(b) hereof.


 


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


 


(n)                                 “Final Expiration Date” shall mean November 10,
2020.


 


(o)                                 “Grandfathered Stock” shall mean
shares held by (i) Carl E. Berg; (ii) his Affiliates and Associates; (iii) his
heirs, legatees and personal representatives; (iv) any trusts formed for
his benefit; and (v) any members of his Immediate Family and any
Affiliates of such member.


 


(p)                                 “Grandfathered Stockholder” shall mean a holder of
Grandfathered Stock.


 


(q)                                 “I&S Parties” shall mean,
collectively, Ingalls & Snyder LLC, a registered broker dealer
and a registered investment advisor (“I&S”),
and all Persons acting as brokerage account managers at I&S.


 


(r)                                    “Immediate Family” shall mean a person’s spouse, parents, children and
siblings, whether by blood, marriage or adoption, or anyone residing in such
person’s home.


 


(s)                                  “Interested Stockholder” shall mean any
Acquiring Person or any Affiliate or Associate of an Acquiring Person or any
other person in which any such Acquiring Person, Affiliate or Associate has an
interest, or any other Person acting directly or indirectly on behalf of or in
concert with any such Acquiring Person, Affiliate or Associate.


 


(t)                                    “NASDAQ” shall mean The NASDAQ Stock
Market LLC.


 


(u)                                 “Person” shall mean any individual,
firm, corporation, partnership, limited partnership, limited liability
partnership, business trust, limited liability company, unincorporated
association or other entity, and shall include any successor (by merger or
otherwise) of such entity.


 


(v)                                 “Preferred Shares” shall mean shares of Series AA
Junior Participating Preferred Stock, par value $0.01 per share, of the
Company.


 


(w)                               “Principal Party” shall have the meaning set
forth in Section 13(b) hereof.


 


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


 


(y)                                 “Redemption Date” shall have the meaning set
forth in Section 23(b) hereof.


 


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


 


(aa)                            “Registered Common Shares” shall have the
meaning set forth in Section 13(b) hereof.


 


(bb)                          “Right Certificate” shall mean a certificate
evidencing a Right in substantially the form of Exhibit A
hereto.


 


(cc)                            “Shares Acquisition Date” shall mean the
earlier of (i) the public announcement by the Company or an Acquiring
Person that an Acquiring Person has become such or (ii) the public 


 


4

















 


disclosure
of facts by the Company or an Acquiring Person indicating that an Acquiring
Person has become such.


 


(dd)                          “Spread” shall have the meaning set
forth in Section 11(a)(iv) hereof.


 


(ee)                            “Subsidiary” of any Person shall mean
any corporation or other entity of which a majority of the voting power of the
voting equity securities or equity interest is owned, directly or indirectly,
by such Person.


 


(ff)                                “Substitution Period” shall have the
meaning set forth in Section 11(a)(iv) hereof.


 


(gg)                          “Summary of Rights” shall mean the Summary of
Rights to Purchase Preferred Shares in substantially the form of Exhibit B hereto.


 


(hh)                          “Trading Day” shall have the meaning set
forth in Section 11(a)(iv) hereof.


 


(ii)                                  A “Trigger Event” shall
be deemed to have occurred upon any Person, together with all Affiliates and
Associates of such Person, becoming an Acquiring Person.


 


Section 2.                                          Appointment of Rights Agent


 


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


 


Section 3.                                          Issue of Right Certificates


 


(a)                                  Until the
earlier of the close of business on (i) the tenth day after the Shares
Acquisition Date, or (ii) the tenth Business Day (or such later date as
may be determined by action of the Board of Directors prior to such time as any
Person becomes an Acquiring Person) after the date of the commencement by any
Person (other than the Company, any Subsidiary of the Company, any employee benefit
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) of, or of the
first public announcement of the intention of any Person (other than any of the
persons referred to in the preceding sentence) or of any Subsidiary of the
Company or any entity holding Common Shares for or pursuant to the terms of any
such plan) to commence, a tender or exchange offer the consummation of which
would result in any Person becoming the Beneficial Owner of Common Shares
aggregating 15%, or in the case of a Grandfathered Stockholder 20%, or more of
the then outstanding Common Shares (irrespective of whether any Common Shares
are actually purchased pursuant to such offer) (including any such date which
is after the date of this Agreement and prior to the issuance of the Rights),
(the earliest of such dates being herein referred to as the “Distribution Date”),
(x) the Rights will be evidenced (subject to the provisions of Section 3(b) hereof)
by the certificates for Common Shares registered in the names of the holders
thereof (which certificates shall also be deemed to be Right Certificates), or
by Book Entry Common Shares, and not by separate Right Certificates, and (y) the
right to receive Right Certificates will be transferable only in connection
with the transfer of Common Shares. As soon as practicable after the
Distribution Date, the Company will prepare and execute, the Rights Agent will
countersign, and the Company will send or cause to be sent (and the Rights
Agent will, if requested, send) by first-class, insured, postage-prepaid mail,
to each record holder of Common 


 


5

















 


Shares as of the close of business on the
Distribution Date, at the address of such holder shown on the records of the
Company, a Right Certificate, in substantially the form of Exhibit A
hereto (a “Right Certificate”),
evidencing one Right for each Common Share so held. As of the Distribution
Date, the Rights will be evidenced solely by such Right Certificates.


 


(b)                                 On the Record
Date, or as soon as practicable thereafter, the Company will send or cause to
be sent (and the Rights Agent will, if requested, send) a copy of a Summary of
Rights by first-class, postage-prepaid mail, to each record holder of Common
Shares as of the close of business on the Record Date, at the address of such
holder shown on the records of the Company. 
With respect to certificates for Common Shares outstanding as of the
Record Date (and/or Book Entry Common Shares), until the Distribution Date, the
Rights will be evidenced by such certificates registered in the names of the
holders thereof regardless of whether a copy of the Summary of Rights is
attached thereto.  Until the Distribution
Date (or the earlier of the Redemption Date or the Final Expiration Date), the
surrender for transfer of any certificate for Common Shares outstanding on the
Record Date, with or without a copy of the Summary of Rights attached thereto,
shall also constitute the transfer of the Rights associated with the Common
Shares represented thereby.


 


(c)                                  Certificates
for Common Shares which become outstanding (including, without limitation,
reacquired Common Shares referred to in the last sentence of this paragraph
(c)) after the Record Date but prior to the earliest of the Distribution Date,
the Redemption Date or Close of Business on the Final Expiration Date shall
have impressed on, printed on, written on or otherwise affixed to them the
following legend:


 


This
certificate also evidences and entitles the holder hereof to certain rights as
set forth in a Rights Agreement between MoSys, Inc.
and Wells Fargo Bank,
N.A. dated as of November 10,
2010 (the “Rights Agreement”), the terms
of which are hereby incorporated herein by reference and a copy of which is on
file at the principal executive offices of MoSys, Inc.  Under certain circumstances, as set forth in
the Rights Agreement, such Rights will be evidenced by separate certificates
and will no longer be evidenced by this certificate.  MoSys, Inc. will mail to the holder of
this certificate a copy of the Rights Agreement without charge after receipt of
a written request therefor. Under certain circumstances, as set forth in the
Rights Agreement, Rights issued to or held by any Person who becomes an
Acquiring Person (as defined in the Rights Agreement) may become null and void.


 


With
respect to any Book Entry Common Shares, such legend shall be included in a
notice to the record holder of such shares in accordance with applicable law.  With respect to such certificates containing
the foregoing legend, until the Distribution Date, or any notice of the
foregoing legend delivered to holders of Book Entry shares, the Rights
associated with the Common Shares represented by such certificates or Book
Entry shares shall be evidenced by such certificates or Book Entry notations
alone, and the surrender for transfer of any such certificate shall also
constitute the transfer of the Rights associated with the Common Shares
represented thereby. In the event that the Company purchases or acquires any
Common Shares after the Record Date but prior to the Distribution Date, the
Company shall not be entitled to exercise any Rights associated with such
Common Shares which are no longer outstanding.


 


6

















 


Notwithstanding
this paragraph (c), neither the omission of a legend nor the failure to deliver
the notice of such legend required hereby shall affect the enforceability of
any part of this Agreement or the rights of any holder of the Rights.


 


Section 4.                                          Form of Right Certificates


 


The
Right Certificates (and the forms of election to purchase Preferred Shares and
of assignment to be printed on the reverse thereof) shall be substantially the
same as Exhibit A hereto and may
have such marks of identification or designation and such legends, summaries or
endorsements printed thereon as the Company may deem appropriate and as are not
inconsistent with the provisions of this 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
other organization on which the Rights may from time to time be listed or
quoted, or to conform to usage. Subject to the other provisions of this
Agreement, the Right Certificates shall entitle the holders thereof to purchase
such number of one one-thousandths of a Preferred Share as shall be set forth
therein at the Purchase Price, but the number of such one one-thousandths of a
Preferred Share and the Purchase Price shall be subject to adjustment as
provided herein.


 


Section 5.                                          Countersignature and Registration


 


The
Right Certificates shall be executed on behalf of the Company by its Chairman
of the Board, its Chief Executive Officer, its President, or any of its
Executive Vice Presidents, or its Chief Financial Officer either manually or by
facsimile signature and shall be attested by the Secretary or an Assistant
Secretary of the Company, either manually or by facsimile signature. The Right
Certificates shall be countersigned by the Rights Agent and shall not be valid
for any purpose unless countersigned, either manually or by facsimile
signature. In case any officer of the Company who shall have signed any of the
Right Certificates shall cease to be such officer of the Company before
countersignature by the Rights Agent and issuance and delivery by the Company,
such Right Certificates, nevertheless, may be countersigned by the Rights Agent
and issued and delivered by the Company with the same force and effect as
though the person who signed such Right Certificates had not ceased to be such
officer of the Company; and any Right Certificate may be signed on behalf of
the Company by any person who, at the actual date of the execution of such
Right Certificate, shall be a proper officer of the Company to sign such Right
Certificate, although at the date of the execution of this Rights Agreement any
such person was not such an officer.


 


Following
the Distribution Date, the Rights Agent will keep or cause to be kept, at its
principal office, books for registration and transfer of the Right Certificates
issued hereunder. Such books shall show the names and addresses of the
respective holders of the Right Certificates, the number of Rights evidenced on
its face by each of the Right Certificates and the date of each of the Right
Certificates.


 


Section 6.                                    Transfer, Split Up, Combination and Exchange of Right Certificates;
Mutilated, Destroyed, Lost or Stolen Right Certificates


 


Subject
to the provisions of Section 14 hereof, at any time after the Close of
Business on the Distribution Date, and at or prior to the Close of Business on
the earlier of the Redemption Date or the Final Expiration Date, any Right
Certificate or Right Certificates (other than Right Certificates representing
Rights that have become void pursuant to Section 11(a)(ii) hereof or
that have been exchanged pursuant to Section 24 hereof) may be
transferred, split up, combined or exchanged for 


 


7

















 


another Right Certificate or Right
Certificates, entitling the registered holder to purchase a like number of one
one-thousandths of a Preferred Share as the Right Certificate or Right
Certificates surrendered then entitled such holder to purchase. Any registered
holder desiring to transfer, split up, combine or exchange any Right
Certificate or Right Certificates shall make such request in writing delivered
to the Rights Agent, and shall surrender the Right Certificate or Right Certificates
to be transferred, split up, combined or exchanged at the principal office of
the Rights Agent.  Neither the Rights
Agent nor the Company shall be obligated to take any action whatsoever with
respect to the transfer, split up, combination or exchange of any such
surrendered Right Certificate until the registered holder shall have completed
and signed the certificate contained in the form of assignment on the reverse
side of such Right Certificate and shall have provided such additional evidence
of the identity of the Beneficial Owner (or former Beneficial Owner) or
Affiliates or Associates thereof as the Company shall reasonably request.  Thereupon the Rights Agent shall countersign
and deliver to the person entitled thereto a Right Certificate or Right
Certificates, as the case may be, as so requested.  The Company may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer, split up, combination or exchange of Right
Certificates.


 


Upon
receipt by the Company and the Rights Agent of evidence reasonably satisfactory
to them of the loss, theft, destruction or mutilation of a Right Certificate,
and, in case of loss, theft or destruction, of indemnity or security reasonably
satisfactory to them and, at the Company’s request, reimbursement to the
Company and the Rights Agent of all reasonable expenses incidental thereto, and
upon surrender to the Rights Agent and cancellation of the Right Certificate if
mutilated, the Company will make and deliver a new Right Certificate of like
tenor to the Rights Agent for delivery to the registered holder in lieu of the
Right Certificate so lost, stolen, destroyed or mutilated.


 


Section 7.                                          Exercise of Rights; Purchase Price; Expiration Date of Rights


 


(a)                                  The registered
holder of any Right Certificate may exercise the Rights evidenced thereby
(other than a holder whose Rights have become void pursuant to Section 11(a)(ii) hereof
or have been exchanged, pursuant to Section 24 hereof) in whole or in part
at any time after the Distribution Date upon surrender of the Right
Certificate, with the form of election to purchase on the reverse side thereof
duly executed, to the Rights Agent at the principal office of the Rights Agent,
together with payment of the Purchase Price for each one one-thousandth of a
Preferred Share as to which the Rights are exercised, at or prior to the
earliest of (i) the Close of Business on the Final Expiration Date, (ii) the
Redemption Date, or (iii) the time at which such Rights are exchanged as
provided in Section 24 hereof.


 


(b)                                 The Purchase
Price for each one one-thousandth of a Preferred Share pursuant to the exercise
of a Right shall initially be $48.00 (the “Purchase Price”)
and shall be subject to adjustment from time to time as provided in Sections 11
and 13 hereof and shall be payable in lawful money of the United States of
America in accordance with paragraph (c) below.


 


(c)                                  Upon receipt of
a Right Certificate representing exercisable Rights, with the form of election
to purchase duly executed, accompanied by payment of the Purchase Price for the
number of one one-thousandths of a Preferred Share to be purchased and an
amount equal to any applicable transfer tax required to be paid by the holder
of such Right Certificate in accordance with Section 9 hereof by cash,
certified check, cashier’s check or money order payable to the order of the
Company, the Rights Agent shall thereupon promptly (i) (A) requisition
from any transfer agent of the Preferred Shares certificates for the number of
one one-thousandths of a Preferred Share to be purchased and 


 


8

















 


the Company hereby irrevocably authorizes its
transfer agent to comply with all such requests, or (B) requisition from
the depository agent depository receipts representing such number of one
one-thousandths of a Preferred Share as are to be purchased (in which case
certificates for the Preferred Shares represented by such receipts shall be
deposited by the transfer agent with the depository agent) and the Company
hereby directs the depository agent to comply with such request, (ii) when
appropriate, requisition from the Company the amount of cash to be paid in lieu
of issuance of fractional shares in accordance with Section 14 hereof, (iii) after
receipt of such certificates or depository receipts, cause the same to be
delivered to or upon the order of the registered holder of such Right
Certificate, registered in such name or names as may be designated by such
holder and (iv) when appropriate, after receipt, deliver such cash to or
upon the order of the registered holder of such Right Certificate.


 


(d)                                 In case the
registered holder of any Right Certificate shall exercise less than all the
Rights evidenced thereby, a new Right Certificate evidencing Rights equivalent
to the Rights remaining unexercised shall be issued by the Rights Agent to the
registered holder of such Right Certificate or to his duly authorized assigns,
subject to the provisions of Section 14 hereof.


 


(e)                                  Notwithstanding
anything in this Agreement to the contrary, neither the Rights Agent nor the
Company will be obligated to undertake any action with respect to a registered
holder upon the occurrence of any purported exercise as set forth in this Section 7
unless the certificate contained in the form of election to purchase set forth
on the reverse side of the Right Certificate surrendered for such exercise will
have been properly completed and duly executed by the registered holder thereof
and the Company will have been provided with such additional evidence of the
identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or
Associates thereof as the Company may reasonably request.


 


Section 8.                                          Cancellation
and Destruction of Right Certificates


 


All
Right Certificates surrendered for the purpose of exercise, transfer, split up,
combination or exchange shall, if surrendered to the Company or to any of its
agents, be delivered to the Rights Agent for cancellation or in canceled form,
or, if surrendered to the Rights Agent, shall be canceled by it, and no Right
Certificates shall be issued in lieu thereof except as expressly permitted by
any of the provisions of this Rights Agreement. The Company shall deliver to
the Rights Agent for cancellation and retirement, and the Rights Agent shall so
cancel and retire, any other Right Certificate purchased or acquired by the
Company otherwise than upon the exercise thereof. The Rights Agent shall, at
the written request of the Company and
after any SEC required retention period, destroy such canceled Right
Certificates, and in such case shall deliver a certificate of destruction
thereof to the Company.  Subject to
applicable law and regulation, the Rights Agent shall maintain (i) in a
retrievable database electronic records of all cancelled or destroyed stock
certificates which have been cancelled or destroyed by the Rights Agent.  The Rights Agent shall maintain such
electronic records or physical records for the time period required by
applicable law and regulation.  Upon
written request of the Company (and at the expense of the Company), the Rights
Agent shall provide to the Company or its designee copies of  such electronic records or physical records
relating to rights certificates cancelled or destroyed by the Rights Agent.


 


Section 9.                                          Availability of Preferred Shares


 


(a)                                  The Company
covenants and agrees that it will cause to be reserved and kept available out
of its authorized and unissued Preferred Shares or any Preferred Shares held in
its 


 


9

















 


treasury the number of Preferred Shares that
will be sufficient to permit the exercise in full of all outstanding Rights in
accordance with Section 7.


 


(b)                                 The Company
covenants and agrees that it will take all such action as may be necessary to
ensure that all Preferred Shares delivered upon exercise of Rights shall, at
the time of delivery of the certificates for such Preferred Shares (subject to
payment of the Purchase Price), be duly and validly authorized and issued and fully
paid and nonassessable shares.


 


(c)                                  The Company
further covenants and agrees that it will pay when due and payable any and all
federal and state transfer taxes and charges which may be payable in respect of
the issuance or delivery of the Right Certificates or of any Preferred Shares
upon the exercise of Rights. The Company shall not, however, be required to pay
any transfer tax which may be payable in respect of any transfer or delivery of
Right Certificates to a person other than, or the issuance or delivery of
certificates or depository receipts for the Preferred Shares in a name other
than that of, the registered holder of the Right Certificate evidencing Rights
surrendered for exercise or to issue or to deliver any certificates or
depository receipts for Preferred Shares upon the exercise of any Rights until
any such tax shall have been paid (any such tax being payable by the holder of
such Right Certificate at the time of surrender) or until it has been
established to the Company’s reasonable satisfaction that no such tax is due.


 


Section 10.                                   Preferred Shares Record Date


 


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


 


Section 11.                                   Adjustment of Purchase Price, Number of Shares or Number of Rights


 


The
Purchase Price, the number of Preferred Shares covered by each Right and the
number of Rights outstanding are subject to adjustment from time to time as
provided in this Section 11.


 


(a)                      (i)                         In the event
the Company shall at any time after the date of this Agreement (A) declare
a dividend on the Preferred Shares payable in Preferred Shares, (B) subdivide
the outstanding Preferred Shares, (C) combine the outstanding Preferred
Shares into a smaller number of Preferred Shares or (D) issue any shares
of its capital stock in a reclassification of the Preferred Shares (including
any such reclassification in connection with a consolidation or merger in which
the Company is the continuing or surviving corporation), except as otherwise
provided in this Section 11(a), the Purchase Price in effect at the time
of the record date for such dividend or of the effective date of such
subdivision, combination or reclassification, and the 


 


10

















 


number and kind of shares of capital stock issuable on such date, shall
be proportionately adjusted so that the holder of any Right exercised after
such time shall be entitled to receive the aggregate number and kind of shares
of capital stock which, if such Right had been exercised immediately prior to
such date and at a time when the Preferred Shares transfer books of the Company
were open, he would have owned upon such exercise and been entitled to receive
by virtue of such dividend, subdivision, combination or reclassification; provided,
however, that in no event shall the consideration to be paid upon the
exercise of one Right be less than the aggregate par value of the shares of
capital stock of the Company issuable upon exercise of one Right.


 


(ii)                                  (A)                              Subject to the
following paragraph of this subparagraph (ii) and Section 24 of this
Agreement, in the event any Person shall become an Acquiring Person (other than
through an acquisition described in subparagraph (iii) of this paragraph
(a)), each holder (other than an Acquiring Person or any direct or indirect
transferee of an Acquiring Person) of a Right shall thereafter have a right to
receive, upon exercise thereof at a price equal to the then current Purchase
Price multiplied by the number of one one-thousandths of a Preferred Share for
which a Right is then exercisable, in accordance with the terms of this
Agreement, such number of Common Shares (or, in the discretion of the Board of
Directors, one one-thousandths of a Preferred Share) of the Company (such
number of shares being referred to herein as the “Adjustment
Shares”) as shall equal the result obtained by (x) multiplying
the then current Purchase Price by the number of one one-thousandths of a
Preferred Share for which a Right is then exercisable and dividing that product
by (y) 50% of the then current per share market price of the Company’s
Common Shares (determined pursuant to Section 11(d) hereof) on the
date such Person became an Acquiring Person.


 


(B)                                Upon and after the
occurrence of a Trigger Event, any Rights that are or were acquired or are or
were beneficially owned by (1) an Acquiring Person or Associate or
Affiliate of an Acquiring Person, (2) any transferee of an Acquiring
Person (or of any Associate or Affiliate of an Acquiring Person) who becomes
such a transferee after the Acquiring Person becomes such, or (3) any
transferee of an Acquiring Person (or of any Associate or Affiliate of an
Acquiring Person) who becomes a transferee prior to or concurrently with the
Acquiring Person becoming such and who receives such Rights pursuant to either (I) a
transfer (regardless of whether for consideration) from such Acquiring Person,
Associate, or Affiliate to holders of equity interests in such Acquiring
Person, Associate, or Affiliate, or to any Person with whom such Acquiring
Person, Associate, or Affiliate has any continuing oral or written plan,
agreement, arrangement, or understanding regarding the transferred Rights, or (II) a
transfer that the Board of Directors of the Company has determined is part of
an oral or written plan, agreement, arrangement, or understanding that has as a
primary purpose or effect avoidance of this paragraph, and subsequent
transferees of such Persons, shall be null and void without any further action
being required therefor and any holder of such Rights (including any subsequent
transferee) shall thereafter have no rights whatsoever with respect to such
Rights, whether under this Agreement or otherwise, including without limitation
the right to exercise such Rights. No Right Certificate shall be issued
pursuant to Section 3 that represents Rights known to be beneficially
owned by an Acquiring Person whose Rights would be void pursuant to the
preceding sentence or any Associate or Affiliate thereof; no Right Certificate
shall be issued at any time upon the transfer of any Rights to a Person known
to be an Acquiring Person whose Rights would be void pursuant to the preceding
sentence or any Associate or Affiliate thereof or to any nominee of such
Acquiring Person, Associate or Affiliate; and any Right Certificate delivered
to the Rights Agent for transfer to a Person known to be an Acquiring Person
whose 


 


11

















 


Rights
would be void pursuant to the preceding sentence shall be canceled.  The Company shall use commercially reasonable
efforts to ensure that the provisions of this Section 11(a)(ii)(B) are
complied with, but shall have no liability to any holder of Right Certificates
or other Person as a result of its failure to make or erroneous making of any
determination with respect to an Acquiring Person or its Affiliates, Associates
or transferees hereunder.


 


(iii)                               The right to buy Common
Shares of the Company pursuant to subparagraph (ii)(A) of this paragraph (a) shall
not arise as a result of any Person becoming an Acquiring Person through a
purchase of Common Shares pursuant to a tender offer made in the manner
prescribed by Section 14(d) of the Exchange Act and the rules and
regulations promulgated thereunder; provided, however, that such
tender offer shall provide for the acquisition of all of the outstanding Common
Shares held by any Person other than such Person and its Affiliates or Associates
at a price and on terms determined by at least a majority of the members of the
Board of Directors who are not officers of the Company and who are not
representatives, nominees, Affiliates or Associates of an Acquiring Person,
after receiving advice from one or more investment or financial advisers, to be
(A) fair to stockholders (taking into account all factors which such
members of the Board deem relevant including, without limitation, prices which
could reasonably be achieved if the Company or its assets were sold on an
orderly basis designed to realize maximum value) and (B) otherwise in the
best interests of the Company and its stockholders and (to the extent the Board
of Directors determines that a consideration of such interests is appropriate)
its employees, customers and communities in which the Company does business.


 


(iv)                              In the event that there
shall not be sufficient Common Shares authorized by the Company’s certificate
of incorporation but unissued to permit the exercise in full of the Rights in
accordance with the foregoing subparagraph (ii), the Company shall: (A) determine
the excess of (1) the value of the Adjustment Shares issuable upon the
exercise of a Right (the “Current Value”),
over (2) the Purchase Price (such excess being hereinafter referred to as
the “Spread”), and (B) with respect
to each Right, make adequate provision to substitute for such unavailable
Adjustment Shares any one or more of the following having an aggregate value
determined by the Board of Directors to be equal to Current Value:  (1) cash, (2) a reduction in the
Purchase Price, (3) Common Shares other equity securities of the Company,
including without limitation, Preferred Shares, (4) debt securities of the
Company, and (5) other assets; provided, however, if, within
30 days following the date of the Trigger Event, the Company shall have not
made adequate provision to deliver value pursuant to clause (B) above, the
Company shall be obligated to deliver, upon the surrender for exercise of a
Right and without requiring payment of the Purchase Price, Common Shares (to
the extent such shares are available) and then, if necessary, cash, which
shares and/or cash have an aggregate value equal to the Spread. If the Board of
Directors of the Company shall determine in good faith that it is likely that
sufficient additional Common Shares could be authorized for issuance upon
exercise in full of the Rights, the 30-day period set forth above may be
extended to the extent necessary, but not more than 90 days following the date of
the occurrence of the earliest of the Trigger Events, in order that the Company
may seek stockholder approval for the authorization of such additional shares
(such period, as it may be extended, hereinafter referred to as the “Substitution Period”). To the extent
that the Company determines that action need be taken pursuant to the first
and/or second sentences of this Section 11(a)(iv), the Company (x) shall
provide, subject to Section 11(a)(ii) hereof, that such action shall
apply uniformly to all outstanding Rights, and (y) may suspend the
exercisability of the Rights until the expiration of the Substitution Period in
order to seek any authorization of additional shares and/or to decide the
appropriate form of distribution to be made


 


12
















 


pursuant
to such first sentence and to determine the value thereof. In the event of any
such suspension, the Company shall issue a public announcement stating that the
exercisability of the Rights has been temporarily suspended, as well as a
public announcement at such time as the suspension is no longer in effect. For
purposes of this Section 11(a)(iv), the value of the Common Shares shall
be the current per share market price (as determined pursuant to Section 11(d) hereof)
per Common Share on the date of the occurrence of the earliest of the Trigger
Events.


 


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


 


(c)                                  In case the
Company shall fix a record date for the making of a distribution to all holders
of the Preferred Shares (including any such distribution made in connection
with a consolidation or merger in which the Company is the continuing or
surviving corporation) of evidences of indebtedness or assets (other than a
regular quarterly cash dividend or a dividend payable in Preferred Shares) or
subscription rights or warrants (excluding those referred to in Section 11(b) hereof),
the Purchase Price to be in effect after such record date shall be determined
by multiplying the Purchase Price in effect immediately prior to such record
date by a fraction, the numerator of which shall be the then current per share
market price of the Preferred Shares on such record date, less the fair market
value (as determined in good faith by the Board of Directors of the Company,
whose determination shall be described in a statement filed with the Rights
Agent) of the portion of the assets or evidences of indebtedness so to be
distributed or of such subscription rights or warrants applicable to one
Preferred Share and the denominator of which shall be 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 


 


13

















 


shares of capital stock of the Company
issuable upon exercise of one Right. 
Such adjustments shall be made successively whenever such a record date
is fixed; and in the event that such distribution is not so made, the Purchase
Price shall again be adjusted to be the Purchase Price which would then be in
effect if such record date had not been fixed.


 


(d)         (i)             For the purpose of any
computation hereunder, the “current per share market price” of any security (a “Security” for the purpose of this Section 11(d)(i))
on any date shall be deemed to be the average of the daily closing prices per
share of such Security for the 30 consecutive Trading Days (as such term is
hereinafter defined) immediately prior to such date; provided, however,
that in the event that the current per share market price of the Security is
determined during a period following the announcement by the issuer of such
Security of (A) a dividend or distribution on such Security payable in
shares of such Security or securities convertible into such shares, or (B) any
subdivision, combination or reclassification of such Security and prior to the
expiration of 30 Trading Days after the ex-dividend date for such dividend or
distribution, or the record date for such subdivision, combination or reclassification,
then, and in each such case, the current per share market price shall be
appropriately adjusted to reflect the current market price per share equivalent
of such Security. The closing price for each day shall be the last sale price
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 NASDAQ or, if the Security is not listed or admitted to
trading on NASDAQ, as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal national
securities exchange on which the Security is listed or admitted to trading or,
if the Security is not listed or admitted to trading on any national securities
exchange, the last reported trade, as reported by the system then in use, or,
if on any such date the Security is not quoted by any such organization, the average
of the closing bid and asked prices as furnished by a professional market maker
making a market in the Security selected by the Board of Directors of the
Company.  The term “Trading
Day” shall mean a day on which the principal national securities
exchange on which the Security is listed or admitted to trading is open for the
transaction of business or, if the Security is not listed or admitted to
trading on any national securities exchange, a Business Day.


 


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


 


(e)                                  No adjustment
in the Purchase Price pursuant to this Section 11 shall be required unless
such adjustment would require an increase or decrease of at least 1% in the
Purchase Price; provided, however, that any adjustments which by
reason of this Section 11(e) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment.  All calculations under this Section 11
shall be made to the nearest cent or to the nearest one ten-millionth of a
Preferred Share or one one-thousandth of any other share or security, as the
case may be. 


 


14

















 


Notwithstanding the first sentence of this Section 11(e),
any adjustment required by this Section 11 shall be made no later than the
earlier of (i) three years from the date of the transaction which requires
such adjustment or (ii) the date of the expiration of the right to
exercise any Rights.


 


(f)                                    If as a result
of an adjustment made pursuant to Section 11(a) hereof, the holder of
any Right thereafter exercised shall become entitled to receive any shares of
capital stock of the Company other than Preferred Shares, the number of such
other shares so receivable upon exercise of any Right shall be subject to
adjustment from time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the Preferred Shares contained in
Section 11(a) through (c), inclusive, and the provisions of Sections
7, 9, 10 and 13 with respect to the Preferred Shares shall apply on like terms
to any such other shares.


 


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


 


(h)                                 Unless the
Company shall have exercised its election as provided in Section 11(i),
upon each adjustment of the Purchase Price as a result of the calculations made
in Sections 11(b) and (c), each Right outstanding immediately prior to the
making of such adjustment shall thereafter evidence the right to purchase, at
the adjusted Purchase Price, that number of one one-thousandths of a Preferred
Share (calculated to the nearest one ten-millionth of a Preferred Share)
obtained by (i) multiplying (x) the number of one one-thousandths of
a share covered by a Right immediately prior to this adjustment by (y) the
Purchase Price in effect immediately prior to such adjustment of the Purchase
Price and (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-thousandths of a Preferred Share purchasable upon the exercise of a Right.
Each of the Rights outstanding after such adjustment of the number of Rights
shall be exercisable for the number of one one-thousandths of a Preferred Share
for which a Right was exercisable immediately prior to such adjustment. Each
Right held of record prior to such adjustment of the number of Rights shall
become that number of Rights (calculated to the nearest one one-thousandth)
obtained by dividing the Purchase Price in effect immediately prior to adjustment
of the Purchase Price by the Purchase Price in effect immediately after
adjustment of the Purchase Price. The Company shall make a public announcement
of its election to adjust the number of Rights, indicating the record date for
the adjustment, and, if known at the time, the amount of the adjustment to be
made. This record date may be the date on which the Purchase Price is adjusted
or any day thereafter, but, if the Right Certificates have been issued, shall
be at least 10 days later than the date of the public announcement. If Right
Certificates have been issued, upon each adjustment of the number of Rights
pursuant to this Section 11(i), the Company shall, as promptly as
practicable, cause to be distributed to holders of record of Right Certificates
on such record date Right Certificates evidencing, subject to Section 14
hereof, the additional Rights to which such holders shall be entitled as a
result of such adjustment, or, at the option of the Company, shall cause to be
distributed to such holders of record in substitution and replacement for the
Right Certificates held by such holders prior to the date of adjustment, and
upon surrender thereof, if required by the Company, new Right Certificates
evidencing all the Rights to which such holders shall be entitled after such
adjustment. Right Certificates so to be distributed shall be issued, executed
and countersigned in the manner provided for herein and shall be registered 


 


15

















 


in the names of the holders of record of
Right Certificates on the record date specified in the public announcement.


 


(j)                                     Irrespective of
any adjustment or change in the Purchase Price or the number of one
one-thousandths of a Preferred Share issuable upon the exercise of the Rights,
the Right Certificates previously and thereafter issued may continue to express
the Purchase Price and the number of one one-thousandths of a Preferred Share
that were expressed in the initial Right Certificates issued hereunder.


 


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


 


(1)                                  In any case in
which this Section 11 shall require that an adjustment in the Purchase
Price be made effective as of a record date for a specified event, the Company
may elect to defer until the occurrence of such event the issuing to the holder
of any Right exercised after such record date of the Preferred Shares and other
capital stock or securities of the Company, if any, issuable upon such exercise
over and above the Preferred Shares and other capital stock or securities of
the Company, if any, issuable upon such exercise on the basis of the Purchase
Price in effect prior to such adjustment; provided, however that
the Company shall deliver to such holder a due bill or other appropriate
instrument evidencing such holder’s right to receive such additional shares
upon the occurrence of the event requiring such adjustment.


 


(m)                               Anything in this
Section 11 to the contrary notwithstanding, the Company shall be entitled
to make such reductions in the Purchase Price, in addition to those adjustments
expressly required by this Section 11, as and to the extent that it in its
sole discretion shall determine to be advisable in order that any (i) consolidation
or subdivision of the Preferred Shares, (ii) issuance wholly for cash of
any Preferred Shares at less than the current market price, (iii) issuance
wholly for cash of Preferred Shares or securities which by their terms are
convertible into or exchangeable for Preferred Shares, (iv) dividends on
Preferred Shares payable in Preferred Shares or (v) issuance of rights,
options or warrants referred to hereinabove in Section 11(b), hereafter
made by the Company to holders of its Preferred Shares shall not be taxable to
such stockholders.


 


(n)                                 In the event
that at any time after the date of this Agreement and prior to the Distribution
Date, the Company shall (i) declare or pay any dividend on the Common Shares
payable in Common Shares or (ii) effect a subdivision, combination or
consolidation of the Common Shares (by reclassification or otherwise than by
payment of dividends in Common Shares) into a greater or lesser number of
Common Shares, then in any such case (A) the number of one one-thousandths
of a Preferred Share purchasable after such event upon proper exercise of each
Right shall be determined by multiplying the number of one one-thousandths of a
Preferred Share so purchasable immediately prior to such event by a fraction,
the numerator of which is the number of Common Shares outstanding immediately
before such event and the denominator of which is the number of Common Shares
outstanding immediately after such event, and (B) each Common Share outstanding
immediately after such event shall have issued with respect to it that number
of Rights which each Common Share outstanding immediately prior to such event
had issued with respect to it. The adjustments provided for in this Section 11(n) shall
be made successively whenever such a dividend is declared or paid or such a
subdivision, combination or consolidation is effected.


 


16

















 


Section 12.                                   Certificate of Adjustment


 


Whenever
an adjustment is made as provided in Sections 11 and 13 hereof, the Company
shall promptly (a) prepare a certificate setting forth such adjustment,
and a brief statement of the facts accounting for such adjustment, (b) file
with the Rights Agent and with each transfer agent for the Common Shares or the
Preferred Shares a copy of such certificate and (c) mail or cause to be
mailed (and the Rights Agent will, if requested, mail) a brief summary thereof
to each holder of a Right Certificate in accordance with Section 25
hereof.  Notwithstanding the foregoing
sentence, neither the failure of the Company to prepare or file such
certificate or to mail such statement to holders of Right Certificates, in each
case as contemplated by the preceding sentence, shall affect the validity of or
the force or effect of any adjustment made pursuant to Sections 11 or 13
hereof.  The Rights Agent shall be fully
protected in relying on any such certificate and on any adjustment therein
contained and shall not be deemed to have knowledge of such adjustment unless
and until it shall have received such certificate.


 


Section 13.                                   Consolidated, Merger or Sale or Transfer of Assets or Earning Power


 


(a)                                  If, following
the Shares Acquisition Date, directly or indirectly, (i) the Company shall
consolidate with, or merge with and into, any Interested Stockholder or, if in
any merger or consolidation all holders of Common Shares are not treated alike,
any other Person (in each case regardless of whether the Company is the
surviving or disappearing corporation), (ii) an Interested Stockholder
shall acquire all or a majority of the Common Shares pursuant to a statutory
plan of exchange, or (iii) the Company shall sell or otherwise transfer
(or one or more of its Subsidiaries shall sell or otherwise transfer), in one
or more transactions, assets or earning power aggregating 50% or more of the
assets or earning power of the Company and its Subsidiaries (taken as a whole)
to one or more Interested Stockholders or, if all holders of Common Shares are
not treated alike in such transaction, any other Person other than to the
Company or one or more of its wholly-owned Subsidiaries, then, and in each such
case, proper provision shall be made so that:


 


(A)                              each holder of
a Right (except those held by an Acquiring Person or as otherwise provided
herein) shall thereafter have the right to receive, upon the exercise thereof
at a price equal to the then current Purchase Price multiplied by the number of
one one-thousandths of a Preferred Share for which a Right is then exercisable,
in accordance with the terms of this Agreement and in lieu of Preferred Shares,
such number of Common Shares of the Principal Party (as hereinafter defined),
not subject to any liens, encumbrances, rights of first refusal or other
adverse claims, as shall equal the result obtained by (x) multiplying the
then current Purchase Price by the number of one one-thousandths of a Preferred
Share for which a Right is then exercisable and dividing that product by (y) 50%
of the then current per share market price of the Common Shares (determined
pursuant to Section 11(d) hereof) of such Principal Party on the date
of consummation of such consolidation, merger, sale or transfer;


 


(B)                                such Principal
Party shall thereafter be liable for, and shall assume, by virtue of such
consolidation, merger, sale or transfer, all the obligations and duties of the
Company pursuant to this Agreement;


 


(C)                                the term “Company”
shall thereafter be deemed to refer to such Principal Party, it being
specifically intended that the provisions of Section 11 shall apply only
to such Principal Party after the first occurrence of an event described in
this Section 13(a); and


 


17

















 


(D)                               such Principal
Party shall take such steps (including, but not limited to, the reservation of
a sufficient number of its Common Shares in accordance with Section 9
hereof) in connection with such consummation as may be necessary to assure that
the provisions hereof shall thereafter be applicable, as nearly as reasonably
may be, in relation to the Common Shares thereafter deliverable upon the
exercise of the Rights.


 


(b)                                 “Principal Party” shall mean:


 


(i)                                     in the case of any
transaction described in clause (i), (ii) or (iii) of
Section 13(a), (A) the Person that is the issuer of any securities
into which Common Shares of the Company are converted in such merger,
consolidation or for which they are exchanged in such statutory plan of
exchange, or, if there is more than one such issuer, the issuer of Common
Shares that has the highest aggregate current market price (determined in
accordance with Section 11(d)) and (B) if no securities are so
issued, the Person that is the other party to such merger, consolidation or
statutory plan of exchange, or, if there is more than one such Person, the Person
the Common Shares of which has the highest aggregate current market price
(determined in accordance with Section 11(d)); and


 


(ii)                                  in the case of any
transaction described in clause (iv) of Section 13(a), the
Person that is the party receiving the largest portion of the assets or earning
power transferred pursuant to such transaction or transactions, or, if each
Person that is a party to such transaction or transactions receives the same
portion of the assets or earning power transferred pursuant to such transaction
or transactions or if the Person receiving the largest portion of the assets or
earning power cannot be determined, whichever Person the Common Shares of which
has the highest aggregate current market price (determined in accordance with Section 11(d));


 


provided, however,
that in any such case, (A) if the Common Shares of such Person are not at
such time and have not been continuously over the preceding twelve-month period
registered under Section 12 of the Exchange Act (“Registered Common Shares”),
or such Person is not a corporation, and such Person is a direct or indirect
Subsidiary of another Person that has Registered Common Shares outstanding, “Principal
Party” shall refer to such other Person; (B) if the Common Shares of such
Person are not Registered Common Shares or such Person is not a corporation,
and such Person is a direct or indirect Subsidiary of another Person but is not
a direct or indirect Subsidiary of another Person which has Registered Common
Shares outstanding, “Principal Party” shall refer to the ultimate parent entity
of such first-mentioned Person; (C) if the Common Shares of such Person
are not Registered Common Shares or such Person is not a corporation, and such
Person is directly or indirectly controlled by more than one Person, and one or
more of such other Persons has Registered Common Shares outstanding, “Principal
Party” shall refer to whichever of such other Persons is the issuer of the
Registered Common Shares having the highest aggregate current market price
(determined in accordance with Section 11(d)); and (D) if the Common
Shares of such Person are not Registered Common Shares or such Person is not a
corporation, and such Person is directly or indirectly controlled by more than
one Person, and none of such other Persons have Registered Common Shares
outstanding, “Principal Party” shall refer to whichever ultimate parent entity
is the corporation having the greatest stockholders’ equity or, if no such
ultimate parent entity is a corporation, shall refer to whichever ultimate
parent entity is the entity having the greatest net assets.


 


(c)                                  The Company
covenants and agrees that it shall not, at any time after the Distribution
Date, (i) consolidate with, or merge with and into, any other Person
(other than a Subsidiary of the Company in a transaction that does not result
in or constitute a Trigger Event), (ii) permit or cause 


 


18

















 


any Person to consolidate with the Company,
or merge with and into the Company (other than a Subsidiary of the Company in a
transaction that does not result in or constitute a Trigger Event), or (iii) sell
or otherwise transfer (or permit any Subsidiary to sell or transfer), in one or
more transactions, assets or earning power aggregating 50% or more of the
assets or earning power of the Company and its Subsidiaries (taken as a whole)
to any other Person or Persons (other than the Company and/or any of its
Subsidiaries in one or more transactions each of which does not result in or
constitute a Trigger Event), if, at the time of or immediately after such
consolidation, merger or sale there are any rights, warrants or other
instruments or securities outstanding or agreements in effect that would
substantially diminish or otherwise eliminate the benefits intended to be
afforded by the Rights or, prior to, simultaneously with or immediately after
such consolidation, merger or sale, the stockholders of the Person who
constitutes, or would constitute, the “Principal Party” for purposes of Section 13(a) hereof
shall have received a distribution of Rights previously owned by such Person or
any of its Affiliates and Associates. 
The Company shall not consummate any such consolidation, merger, sale or
transfer unless prior thereto the Company and such other Person shall have
executed and delivered to the Rights Agent a supplemental agreement evidencing
compliance with this Section 11(n).


 


(d)                                 The Company
covenants and agrees that, after the Distribution Date, it will not, except as
permitted by Section 23, Section 24 or Section 27 hereof, take
(or permit any Subsidiary of the Company to take) any action if at the time
such action is taken it is reasonably foreseeable that such action will
diminish substantially or otherwise eliminate the benefits intended to be
afforded by the Rights.


 


(e)                                  In the event
that at any time after the occurrence of an event described in
Section 11(a)(ii) hereof some or all of the Rights shall not have
then been exercised at the time of the occurrence of an event described in Section 13(a) hereof,
the Rights which have not theretofore been exercised shall thereafter be
exercisable in the manner described in Section 13(a) (without taking
into account any prior adjustment required by Section 11(a)(ii)).


 


(f)                                    The provisions
of this Section 13 shall similarly apply to successive mergers or
consolidations or sales or other transfers.


 


(g)                                 Notwithstanding
anything in this Agreement to the contrary, this Section 13 shall not be
applicable to a transaction described in Section 13(a)(i), (ii) or (iii) if:  (i) such transaction is consummated with
a Person or Persons who acquired Common Shares pursuant to a tender offer
described in Section 11(a)(iii) (or with a wholly-owned Subsidiary of
any such Person or Persons), (ii) the price per Common Share offered in
such transaction is not less than the price per Common Share paid to all
holders of Common Shares whose shares were purchased pursuant to such tender or
exchange offer, and (iii) the form of consideration being offered to the
remaining holders of Common Shares pursuant to such transaction is the same as
the form of consideration paid pursuant to such tender offer.  Upon consummation of any such transaction
contemplated by this Section 13(f), all Rights shall expire.


 


Section 14.                                                                                   Fractional Rights and Fractional Shares


 


(a)                                  The Company
shall not be required to issue fractions of Rights or to distribute Right
Certificates which evidence fractional Rights. In lieu of such fractional
Rights, there shall be paid to the registered holders of the Right Certificates
with regard to which such fractional Rights would otherwise be issuable, an
amount in cash equal to the same fraction of the current market value of a 


 


19

















 


whole Right. For the purposes of this Section 14(a),
the current market value of a whole Right shall be the closing price of the
Rights for the Trading Day immediately prior to the date on which such
fractional Rights would have been otherwise issuable. The closing price for any
day shall be the last sale price, regular or, in case no such sale takes place
on such day, the average of the closing bid and asked prices, way in either
case as reported in the principal consolidated transaction reporting system
with respect to securities listed or admitted to trading on NASDAQ or, if the
Rights are not listed or admitted to trading on the NASDAQ, as reported in the
principal consolidated transaction reporting system with respect to securities
listed on the principal national securities exchange on which the Rights are
listed or admitted to trading or, if the Rights are not listed or admitted to
trading on any national securities exchange, the last reported trade in the
over-the-counter market, as reported by the system then in use or, if on any
such date the Rights are not quoted by any such organization, the average of
the closing bid and asked prices as furnished by a professional market maker
making a market in the Rights selected by the Board of Directors of the
Company. If on any such date no such market maker is making a market in the
Rights, the fair value of the Rights on such date as determined in good faith
by the Board of Directors of the Company shall be used.


 


(b)                                 The Company
shall not be required to issue fractions of Preferred Shares (other than
fractions which are integral multiples of one one-thousandth 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-thousandth of a Preferred Share). Fractions of Preferred Shares in
integral multiples of one one-thousandth of a Preferred Share may, at the
election of the Company, be evidenced by depositary receipts, pursuant to an
appropriate agreement between the Company and a depositary selected by it; provided,
that such agreement shall provide that the holders of such depositary receipts
shall have all the rights, privileges and preferences to which they are
entitled as beneficial owners of the Preferred Shares represented by such
depositary receipts. In lieu of fractional Preferred Shares that are not
integral multiples of one one-thousandth of a Preferred Share, the Company
shall pay to the registered holders of Right Certificates at the time such
Rights are exercised as herein provided an amount in cash equal to the same
fraction of the current market value of one Preferred Share. For the purposes
of this Section 14(b), the current market value of a Preferred Share shall
be the closing price of a Preferred Share (as determined pursuant to the second
sentence of Section 11(d)(i) hereof) for the Trading Day immediately
prior to the date of such exercise.


 


(c)                                  The holder of a
Right by the acceptance of the Right expressly waives his right to receive any
fractional Rights or any fractional shares upon exercise of a Right (except as
provided above).


 


Section 15.                                   Rights of Action


 


All
rights of action in respect of this Agreement, excepting the rights of action
given to the Rights Agent under Section 18 hereof, 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 holder of any other Right
Certificate (or, prior to the Distribution Date, of the Common Shares), may, on
his own behalf and for his own benefit, enforce, and may institute and maintain
any suit, action or proceeding against the Company to enforce, or otherwise act
in respect of, his right to exercise the Rights evidenced by such Right
Certificate in the manner provided in such Right Certificate and in this
Agreement. Without limiting the foregoing or any remedies available to the
holders of Rights, it is specifically acknowledged that the holders of Rights 


 


20

















 


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, and injunctive relief against actual or threatened
violations of the obligations of any Person subject to, this Agreement.


 


Section 16.                                   Agreement of Right Holders


 


Every
holder of a Right, by accepting the same, consents and agrees with the Company
and with every other holder of a Right that:


 


(a)                                  prior to the
Distribution Date, the Rights will be transferable only in connection with the
transfer of the Common 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, 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 Shares
certificate (and/or Book Entry Common Shares)) is registered as the absolute
owner thereof and of the Rights evidenced thereby (notwithstanding any notations
of ownership or writing on the Right Certificates or the associated Common
Shares certificate (or notices provided to holders of Book Entry Common Shares)
made by anyone other than the Company or the Rights Agent) for all purposes
whatsoever, and neither the Company nor the Rights Agent shall be affected by
any notice to the contrary; and


 


(d)                                 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 a beneficial interest
in 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, the Company
must use commercially reasonable efforts to have any such order, decree or
ruling lifted or otherwise overturned as soon as possible.


 


Section 17.                                   Right Certificate Holder Not Deemed a Stockholder


 


No
holder, as such, of any Right Certificate, shall be entitled to vote, receive
dividends or be deemed for any purpose the holder of the Preferred Shares or
any other securities of the Company which may at any time be issuable on the
exercise of the Rights represented thereby, nor shall anything contained herein
or in any Right Certificate be construed to confer upon the holder of any Right
Certificate, as such, any of the rights of a 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 Section 25 hereof), or to receive
dividends or subscription rights, or otherwise, until the Right or Rights
evidenced by such Right Certificate shall have been exercised in accordance
with the provisions hereof.


 


21
















 


Section 18.                                   Concerning the Rights Agent


 


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


 


The
Rights Agent shall be protected and shall incur no liability for, or in respect
of any action taken, suffered or omitted by it in connection with, its
administration of this Agreement in reliance upon any Right Certificate or
certificate for the Preferred Shares or Common Shares or for other securities
of the Company, instrument of assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice, direction, consent, certificate,
statement, or other paper or document believed by it to be genuine and to be
signed, executed and, where necessary, verified or acknowledged, by the proper
person or persons, or otherwise upon the advice of counsel as set forth in Section 20
hereof.


 


Section 19.                                   Merger or Consolidation or Change of Name of Rights Agent


 


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


 


In
case at any time the name of the Rights Agent shall be changed and at such time
any of the Right Certificates shall have been countersigned but not delivered,
the Rights Agent may adopt the countersignature under its prior name and
deliver Right Certificates so countersigned; and in case at that time any of
the Right Certificates shall not have been countersigned, the Rights Agent may
countersign such Right Certificates either in its prior name or in its changed
name; and in all such cases such Right Certificates shall have the full force
provided in the Right Certificates and in this Agreement.


 


22

















 


Section 20.                                   Duties of Rights Agent


 


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


 


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


 


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


 


(c)                                  The Rights
Agent shall be liable hereunder to the Company and any other Person only for
its own negligence, bad faith or willful misconduct.  Anything in this Agreement to the contrary
notwithstanding, in no event shall the Rights Agent be liable for special, indirect
or consequential loss or damage of any kind whatsoever (including, but not
limited to, lost profits), even if the Rights Agent has been advised of the
likelihood of such loss or damage and regardless of the form of action.


 


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


 


(e)                                  The Rights
Agent shall not be under any responsibility in respect of the validity of this
Agreement or the execution and delivery hereof (except the due execution hereof
by the Rights Agent) or in respect of the validity or execution of any Right
Certificate (except its countersignature thereof); nor shall it be responsible
for any breach by the Company of any covenant or condition contained in this
Agreement or in any Right Certificate; nor shall it be responsible for any
change in the exercisability of the Rights (including the Rights becoming void
pursuant to Section 11(a)(ii) hereof) or any adjustment in the terms
of the Rights (including the manner, method or amount thereof) provided for in Section 3,
11, 13, 23 or 24, or the ascertaining of the existence of facts that would
require any such change or adjustment (except with respect to the exercise of
Rights evidenced by Right Certificates after actual notice that such change or
adjustment is required); nor shall it by any act hereunder be deemed to make
any representation or warranty as to the authorization or reservation of any
Preferred Shares to be issued pursuant to this Agreement or any Right
Certificate or as to whether any Preferred Shares will, when issued, be validly
authorized and issued, fully paid and nonassessable.


 


23

















 


(f)                                    The Company
agrees that it will perform, execute, acknowledge and deliver or cause to be
performed, executed, acknowledged and delivered all such further and other
acts, instruments and assurances as may reasonably be required by the Rights
Agent for the carrying out or performing by the Rights Agent of the provisions
of this Agreement.


 


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


 


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


 


(i)                                     The Rights
Agent 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, provided reasonable care was exercised in the selection and continued
employment or retention thereof.


 


Section 21.                                   Change of Rights Agent


 


The
Rights Agent or any successor Rights Agent may resign and be discharged from
its duties under this Agreement upon 30 days’ notice in writing mailed to the Company
and to each transfer agent of the Common Shares or Preferred Shares by
registered or certified mail, and to the holders of the Right Certificates by
first-class mail.  The Company may remove
the Rights Agent or any successor Rights Agent upon 30 days’ notice in writing,
mailed to the Rights Agent or successor Rights Agent, as the case may be, and
to each transfer agent of the Common Shares or Preferred Shares by registered
or certified mail, and to the holders of the Right Certificates by first-class
mail. If the Rights Agent shall resign or be removed or shall otherwise become
incapable of acting, the Company shall appoint a successor to the Rights Agent.
If the Company shall fail to make such appointment within a period of 30 days
after giving notice of such removal or after it has been notified in writing of
such resignation or incapacity by the resigning or incapacitated Rights Agent
or by the holder of a Right Certificate (who shall, with such notice, submit
his Right Certificate for inspection by the Company), the registered holder of
any Right Certificate may apply to any court of competent jurisdiction for the
appointment of a new Rights Agent. Any successor Rights Agent, whether
appointed by the Company or by such a court, shall be a corporation (or an
affiliate of a corporation) organized and doing business under the laws of the
United States or any state of the United States so long as such corporation is
authorized to do business as a banking institution, is authorized under such
laws to exercise corporate trust or stock transfer powers, is in good standing,
and is subject to supervision or examination by federal or state authority, and
has at the time of its appointment as Rights Agent a combined capital and
surplus of at least $500 million. After appointment, the successor Rights Agent
shall be vested with the same powers, rights, duties and responsibilities as if
it had been originally named as Rights Agent without further act or deed; but
the predecessor Rights Agent shall deliver and transfer to the successor Rights
Agent any property at the 


 


24

















 


time held by it hereunder, and execute and
deliver any further assurance, conveyance, act or deed necessary for the
purpose. Not later than the effective date of any such appointment the Company
shall file notice with the predecessor Rights Agent and each transfer agent of
the Common Shares or Preferred Shares, and mail a notice thereof in writing to
the registered holders of the Right Certificates. Failure to give any notice
provided for in this Section 21, however, or any defect therein, shall not
affect the legality or validity of the resignation or removal of the Rights
Agent or the appointment of the successor Rights Agent, as the case may be.


 


Section 22.                                   Issuance of New Right Certificates


 


Notwithstanding
any of the provisions of this Agreement or of the Rights to the contrary, the
Company may, at its option, issue new Right Certificates evidencing Rights in
such form as may be approved by its Board of Directors to reflect any
adjustment or change in the Purchase Price and the number or kind or class of
shares or other securities or property purchasable under the Right Certificates
made in accordance with the provisions of this Agreement.


 


Section 23.                                   Redemption


 


(a)                                  The Board of
Directors of the Company may, at its option, at any time prior to such time as
any Person becomes an Acquiring Person, redeem all but not less than all the
then outstanding Rights at a redemption price of $0.01 per Right, appropriately
adjusted to reflect any stock split, stock dividend or similar transaction
occurring after the date hereof (such redemption price being hereinafter
referred to as the “Redemption Price”); provided,
however, that if, following the occurrence of a Shares Acquisition Date
and following the expiration of the right of redemption hereunder but prior to
any event described in clause (B) of Section 11(a)(ii) or
clauses (i), (ii) or (iii) of Section 13(a) hereof, (i) a
Person who is an Acquiring Person shall have transferred or otherwise disposed
of a number of shares of Common Shares in one transaction or series of
transactions, not directly or indirectly involving the Company or any of its
Subsidiaries, which did not result in the occurrence of an event described in
clause (B) of Section 11(a)(ii) or clauses (i), (ii) or (iii) of
Section 13(a) hereof such that such Person is thereafter a Beneficial
Owner of less than 10% of the outstanding Common Shares, and (ii) there
are no other Persons, immediately following the occurrence of the event
described in clause (i), who are Acquiring Persons, then the right of
redemption shall be reinstated and thereafter be subject to the provisions of
this Section 23.  The redemption of
the Rights by the Board of Directors may be made effective at such time, on
such basis and with such conditions as the Board of Directors in its sole
discretion may establish.  The Company
may, in its discretion, round up the redemption price to be paid to any holder
of Rights to the nearest whole cent.


 


(b)                                 Immediately
upon the action of the Board of Directors of the Company ordering the
redemption of the Rights pursuant to paragraph (a) of this Section 23
(the “Redemption Date”), and
without any further action and without any notice, the right to exercise the
Rights will terminate and the only right thereafter of the holders of Rights
shall be to receive the Redemption Price. The Company shall promptly give
public notice of any such redemption; provided, however, that the
failure to give, or any defect in, any such notice shall not affect the
validity of such redemption. Within 10 days after such action of the Board of
Directors ordering the redemption of the Rights, the Company shall mail or
cause to be mailed (and the Rights Agent will, if requested, mail on behalf of
the Company) a notice of redemption to all the holders of the then outstanding
Rights at their last addresses as they appear upon the registry books of the
Rights Agent or, prior to the Distribution Date, on the registry books of the
transfer agent for the Common Shares. Any notice which is mailed 


 


25

















 


in the manner herein provided shall be deemed
given, whether or not the holder receives the notice. Each such notice of
redemption will state the method by which the payment of the Redemption Price
will be made.


 


Section 24.                                   Exchange


 


(a)                                  The Board of
Directors of the Company may, at its option, at any time after any Person
becomes an Acquiring Person, exchange all or part of the then outstanding and
exercisable Rights (which shall not include Rights that have become void
pursuant to the provisions of Section 11(a)(ii) hereof) for Common
Shares at an exchange ratio of one Common Share per Right, appropriately
adjusted to reflect any stock split, stock dividend or similar transaction
occurring after the date hereof (such exchange ratio being hereinafter referred
to as the “Exchange Ratio”).
Notwithstanding the foregoing, the Board of Directors shall not be empowered to
effect such exchange at any time after any Person (other than the Company, any
Subsidiary of the Company, any employee benefit plan of the Company or of any
such Subsidiary, or of any entity holding Common Shares for or pursuant to the
terms of any such plan), together with all Affiliates and Associates of such
Person, becomes the Beneficial Owner of 50% or more of the Common Shares then
outstanding.


 


(b)                                 Immediately
upon the action of the Board of Directors of the Company ordering the exchange
of any Rights pursuant to subsection (a) of this Section 24 and
without any further action and without any notice, the right to exercise such
Rights shall terminate and the only right thereafter of a holder of such Rights
shall be to receive that number of Common Shares equal to the number of such
Rights held by such holder multiplied by the Exchange Ratio. The Company shall
promptly give public notice of any such exchange; provided, however,
that the failure to give, or any defect in, such notice shall not affect the
validity of such exchange. The Company promptly shall mail or cause to be
mailed (and the Rights Agent will, if requested, mail on the Company’s behalf)
a notice of any such exchange to all of the holders of such Rights at their
last addresses as they appear upon the registry books of the Rights Agent. Any
notice which is mailed in the manner herein provided shall be deemed given,
whether or not the holder receives the notice. Each such notice of exchange
will state the method by which the exchange of the Common Shares for Rights
will be effected and, in the event of any partial exchange, the number of
Rights which will be exchanged.  Any
partial exchange shall be effected pro rata based on the number of Rights
(other than Rights which have become void pursuant to the provisions of Section 11(a)(ii) hereof)
held by each holder of Rights.


 


(c)                                  In any exchange
pursuant to this Section 24, the Company, at its option, may substitute
Preferred Shares (or Equivalent Preferred Shares, as such term is defined in Section 11(b) hereof)
for Common Shares in exchange for Rights, at the initial rate of one
one-thousandth of a Preferred Share (or equivalent preferred share) for each
Common Share, as appropriately adjusted to reflect adjustments in the voting
rights of the Preferred Shares pursuant to the terms thereof, so that the
fraction of a Preferred Share delivered in lieu of each Common Share shall have
the same voting rights as one Common Share.


 


(d)                                 In the event
that there shall not be sufficient Common Shares or Preferred Shares issued but
not outstanding or authorized but unissued to permit any exchange of Rights as
contemplated in accordance with this Section 24, the Company shall use its
best efforts to cause all such action to be taken as may be necessary to
authorize additional Common Shares or Preferred Shares for issuance upon
exchange of the Rights.


 


26

















 


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


 


Section 25.                                   Notice of Certain Events


 


(a)                                  In case the
Company shall propose (i) to pay any dividend payable in stock of any
class to the holders of its Preferred Shares or to make any other distribution
to the holders of its Preferred Shares (other than a regular quarterly cash
dividend), (ii) to offer to the holders of its Preferred Shares rights 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 50% or
more of the assets or earning power of the Company and its Subsidiaries (taken
as a whole) to, any other Person, (v) to effect the liquidation,
dissolution or winding up of the Company, or (vi) to declare or pay any
dividend on the Common Shares payable in Common Shares or to effect a subdivision,
combination or consolidation of the Common Shares (by reclassification or
otherwise than by payment of dividends in Common Shares), then, in each such
case, the Company shall give to each holder of a Right Certificate, in
accordance with Section 26 hereof, a notice of such proposed action, which
shall specify the record date for the purposes of such stock dividend, or
distribution of rights or warrants, or the date on which such reclassification,
consolidation, merger, sale, transfer, liquidation, dissolution, or winding up
is to take place and the date of participation therein by the holders of the
Common Shares and/or Preferred Shares, if any such date is to be fixed, and
such notice shall be so given in the case of any action covered by clause (i) or
(ii) above at least 10 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 days prior to the date of the taking of such
proposed action or the date of participation therein by the holders of the
Common Shares and/or Preferred Shares, whichever shall be the earlier.


 


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


 


Section 26.                                   Notices


 


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


 


27

















 


MoSys, Inc.


3301
Olcott Street


Santa
Clara, CA 95054


Attn:  Chief Financial Officer


 


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


 


Wells Fargo Bank, N.A.


161 North Concord Exchange


South St. Paul, MN 55075


Attn:  Pamela E. Herlich


 


Notices
or demands authorized by this Agreement to be given or made by the Company or
the Rights Agent to the holder of any Right Certificate shall be sufficiently
given or made if sent by first-class mail, postage prepaid, addressed to such
holder at the address of such holder as shown on the registry books of the
Company.


 


Section 27.                                   Supplements and Amendments


 


The
Company may from time to time, and the Rights Agent shall, if the Company so
directs, supplement or amend this Agreement without the approval of any holders
of Right Certificates in order to cure any ambiguity, to correct or supplement
any provision contained herein which may be defective or inconsistent with any
other provisions herein, or to make any other provisions with respect to the
Rights which the Company may deem necessary or desirable; provided, however,
that from and after such time as any Person becomes an Acquiring Person, this
Agreement shall not be amended or supplemented in any manner which the Board of
Directors determines in its reasonable judgment would adversely affect the
interests of the holders of Rights (other than an Acquiring Person and its
Affiliates and Associates).  Any such
supplement or amendment to be evidenced by a writing signed by the Company and
the Rights Agent.


 


Section 28.                                   Registration of Securities


 


The
Company may temporarily suspend, for a period of time not to exceed 120 days,
the exercisability of the Rights in order to prepare and file, if deemed
necessary by the Company, such registration statements and other filings under
the Securities Act of 1933, as amended, and the securities or “blue sky” laws
of any state, with respect to any securities purchasable upon the exercise of
the Rights, and to permit the same to become effective. Upon any such
suspension, the Company shall issue a public announcement stating that the
exercisability of the Rights has been temporarily suspended, as well as a
public announcement at such time as the suspension is no longer in effect.
Notwithstanding any provision of this Agreement to the contrary, the Rights
shall not be exercisable in any jurisdiction unless the requisite qualification
in such jurisdiction has been obtained.


 


Section 29.                                   Determinations and Actions by the Board of Directors


 


The
Board of Directors of the Company shall have the exclusive power and authority
to administer this Agreement and to exercise all rights and powers specifically
granted to the Board or 


 


28

















 


to the Company, or as may be necessary or
advisable in the administration of this Agreement, including, without
limitation, the right and power to interpret the provisions of this Agreement,
and make all determinations deemed necessary or advisable for the
administration of this Agreement (including a determination to redeem or to not
redeem the Rights or to amend the Agreement). All such actions, calculations,
interpretations and determinations which are done or made by the Board in good
faith, shall be final, conclusive and binding on the Company, the Rights Agent,
the holders of the Rights and all other parties, and not subject the Board to
any liability to the holders of the Rights.


 


Section 30.                                   Successors


 


All
the covenants and provisions of this Agreement by or for the benefit of the
Company or the Rights Agent shall bind and inure to the benefit of their
respective successors and assigns hereunder.


 


Section 31.                                   Benefits of this Agreement


 


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


 


Section 32.                                   Severability


 


If
any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.


 


Section 33.                                   Governing Law


 


This
Agreement and each Right Certificate issued hereunder shall be deemed to be a
contract made under the laws of the state of Delaware and for all purposes
shall be governed by and construed in accordance with the laws of such state
applicable to contracts to be made and performed entirely within such state.


 


Section 34.                                   Counterparts


 


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


 


Section 35.                                   Descriptive Headings


 


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


 


[Signature page follows]


 


29

















 


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


 


	
   

  	
  MoSys, Inc.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ James W. Sullivan

  
	
   

  	
  Name: James W. Sullivan

  
	
   

  	
  Title:  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Wells Fargo Bank, N.A.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Pamela E. Herlich

  
	
   

  	
  Name: Pamela E. Herlich

  
	
   

  	
  Title:   Vice President

  



 


30

















 


Exhibit A


 


Form of Right Certificate


 

















 


Exhibit B


 


Summary of Rights