Amended and Restated Rights Agreement, dated as of February 27, 2009



 Exhibit 4.1 
  

  
 BIOMARIN PHARMACEUTICAL INC. 
 a Delaware corporation 
  
 and 
  
 MELLON INVESTOR SERVICES LLC 
 a New Jersey limited liability company 
 as Rights Agent 
  
 AMENDED
AND RESTATED 
 RIGHTS AGREEMENT 
  
 Dated as of February 27, 2009 
  








 TABLE OF CONTENTS 
  


					
	 	  	 	  	Page


	 SECTION 1.
	  	CERTAIN DEFINITIONS	  	2
			
	 SECTION 2.
	  	APPOINTMENT OF RIGHTS AGENT	  	7
			
	 SECTION 3.
	  	ISSUANCE OF RIGHT CERTIFICATES	  	7
			
	 3.1
	  	Rights Represented by Share Certificates	  	7
	 3.2
	  	Summary of Rights	  	8
	 3.3
	  	New Certificates After Record Date	  	9
			
	 SECTION 4.
	  	FORM OF RIGHT CERTIFICATES	  	10
			
	 SECTION 5.
	  	COUNTERSIGNATURE AND REGISTRATION	  	11
			
	 SECTION 6.
	  	TRANSFER, SPLIT UP, COMBINATION AND EXCHANGE OF RIGHT CERTIFICATES; MUTILATED, DESTROYED, LOST OR STOLEN RIGHT CERTIFICATES	  	12
			
	 SECTION 7.
	  	EXERCISE OF RIGHTS; PURCHASE PRICE; EXPIRATION DATE OF RIGHTS	  	13
			
	 7.1
	  	Exercise of Rights	  	13
	 7.2
	  	Purchase	  	13
	 7.3
	  	Payment Procedures	  	13
	 7.4
	  	Partial Exercise	  	14
	 7.5
	  	Rights held by an Acquiring Person	  	14
	 7.6
	  	Full Information Concerning Ownership	  	14
			
	 SECTION 8.
	  	CANCELLATION AND DESTRUCTION OF RIGHT CERTIFICATES	  	14
			
	 SECTION 9.
	  	RESERVATION AND AVAILABILITY OF STOCK	  	15
			
	 SECTION 10.
	  	PREFERRED SHARES RECORD DATE	  	16
			
	 SECTION 11.
	  	ADJUSTMENT OF PURCHASE PRICE, NUMBER OF SHARES OR NUMBER OF RIGHTS	  	17
			
	 11.1
	  	Post-Execution Events	  	17
	 11.2
	  	Dilutive Rights Offering	  	20
	 11.3
	  	Distributions	  	20
	 11.4
	  	Current Per Share Market Value	  	21
	 11.5
	  	Insignificant Changes	  	22
	 11.6
	  	Shares Other Than Preferred Shares	  	22
	 11.7
	  	Rights Issued Prior to Adjustment	  	23
	 11.8
	  	Effect of Adjustments	  	23
	 11.9
	  	Adjustment in Number of Rights	  	23
	 11.10
	  	Right Certificates Unchanged	  	24
	 11.11
	  	Par Value Limitations	  	24
	 11.12
	  	Deferred Issuance	  	24
	 11.13
	  	Reduction in Purchase Price	  	24

  

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 TABLE OF CONTENTS 
 (continued) 
  

					
	 	  	 	  	Page


	 11.14
	  	Company Not to Diminish Benefits of Rights	  	24
	 11.15
	  	Adjustment of Rights Associated with Common Shares	  	25
	 11.16
	  	Company Agreements	  	25
			
	 SECTION 12.
	  	CERTIFICATE OF ADJUSTED PURCHASE PRICE OR NUMBER OF SHARES	  	25
			
	 SECTION 13.
	  	CONSOLIDATION, MERGER OR SALE OR TRANSFER OF ASSETS OR EARNING POWER	  	25
			
	 13.1
	  	Certain Transactions	  	26
	 13.2
	  	Actions Prior to Transactions	  	27
	 13.3
	  	Principal Party	  	28
	 13.4
	  	Approved Acquisitions	  	29
			
	 SECTION 14.
	  	FRACTIONAL RIGHTS AND FRACTIONAL SHARES	  	29
			
	 14.1
	  	Cash in Lieu of Fractional Rights	  	29
	 14.2
	  	Cash in Lieu of Fractional Preferred Shares	  	30
	 14.3
	  	Cash in Lieu of Fractional Common Shares	  	30
	 14.4
	  	Waiver of Right to Receive Fractional Rights or Shares	  	30
			
	 SECTION 15.
	  	RIGHTS OF ACTION	  	31
			
	 SECTION 16.
	  	AGREEMENT OF RIGHT HOLDERS	  	31
			
	 SECTION 17.
	  	RIGHT CERTIFICATE HOLDER NOT DEEMED A STOCKHOLDER	  	32
			
	 SECTION 18.
	  	CONCERNING THE RIGHTS AGENT	  	32
			
	 SECTION 19.
	  	MERGER OR CONSOLIDATION OR CHANGE OF NAME OF RIGHTS AGENT	  	33
			
	 SECTION 20.
	  	DUTIES OF RIGHTS AGENT	  	33
			
	 20.1
	  	Legal Counsel	  	33
	 20.2
	  	Certificates as to Facts or Matters	  	34
	 20.3
	  	Standard of Care	  	34
	 20.4
	  	Reliance on Agreement and Right Certificates	  	34
	 20.5
	  	No Responsibility as to Certain Matters	  	34
	 20.6
	  	Further Assurance by Company	  	34
	 20.7
	  	Authorized Company Officers	  	35
	 20.8
	  	Freedom to Trade in Company Securities	  	35
	 20.9
	  	Reliance on Attorneys and Agents	  	35
	 20.10
	  	Incomplete Certificate	  	35
	 20.11
	  	Rights Holders List	  	35
	 20.12
	  	Use of Funds	  	35
			
	 SECTION 21.
	  	CHANGE OF RIGHTS AGENT	  	36

  

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 TABLE OF CONTENTS 
 (continued) 
  

					
	 	  	 	  	Page


	 SECTION 22.
	  	ISSUANCE OF NEW RIGHT CERTIFICATES	  	36
			
	 SECTION 23.
	  	REDEMPTION	  	37
			
	 23.1
	  	Right to Redeem	  	37
	 23.2
	  	Redemption Procedures	  	37
			
	 SECTION 24.
	  	NOTICE OF CERTAIN EVENTS	  	38
			
	 SECTION 25.
	  	NOTICES	  	39
			
	 SECTION 26.
	  	SUPPLEMENTS AND AMENDMENTS; INTEGRATION	  	39
			
	 SECTION 27.
	  	EXCHANGE	  	40
			
	 27.1
	  	Exchange of Common Shares for Rights	  	40
	 27.2
	  	Exchange Procedures	  	41
	 27.3
	  	Insufficient Shares	  	41
			
	 SECTION 28.
	  	SUCCESSORS	  	41
			
	 SECTION 29.
	  	BENEFICIARIES OF THIS AGREEMENT	  	41
			
	 SECTION 30.
	  	DETERMINATION AND ACTIONS BY THE BOARD OF DIRECTORS	  	42
			
	 SECTION 31.
	  	SEVERABILITY	  	42
			
	 SECTION 32.
	  	GOVERNING LAW	  	42
			
	 SECTION 33.
	  	COUNTERPARTS	  	42
			
	 SECTION 34.
	  	DESCRIPTIVE HEADING	  	42
			
	 SECTION 35.
	  	FORCE MAJEURE	  	42

  

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 BioMarin Pharmaceutical Inc. 
 a Delaware corporation 
 and 
 Mellon Investor Services LLC 
 a New
Jersey limited liability company 
 as Rights Agent 
 AMENDED AND RESTATED 
 RIGHTS AGREEMENT 
 Dated as of February 27, 2009 
 Amended and Restated Rights Agreement (the “Agreement”), dated as of February 27, 2009, between BioMarin Pharmaceutical Inc., a
Delaware corporation (the “Company”) and Mellon Investor Services LLC, a New Jersey limited liability company as Rights Agent (the “Rights Agent”). 
 RECITALS 
 WHEREAS, on September 11, 2002 (the “Rights Dividend
Declaration Date”), the Board of Directors authorized a dividend of one preferred share purchase right (a “Right”) for each Common Share (as defined in Section 1.7) outstanding at the close of business on
September 23, 2002 (the “Record Date”) and has authorized and directed the issuance of one Right (subject to adjustment as provided herein) with respect to each Common Share that shall become outstanding between the Record Date
and the earliest of the Distribution Date and the Expiration Date (as such terms are defined in Sections 3.1 and 7.1), each Right initially representing the right to purchase one one-hundredth (subject to adjustment) of a share of Series B Junior
Participating Preferred Stock (the “Preferred Shares”) of the Company having the rights, powers and preferences set forth in a Certificate of Designation, Preferences and Rights filed with Secretary of State of Delaware on
September 12, 2002; provided, however, that Rights may be issued with respect to Common Shares that shall become outstanding after the Distribution Date and prior to the Expiration Date in accordance with Section 22. 
 WHEREAS, on September 11, 2002, the Company and the Rights Agent entered in a Rights Agreement that set forth certain terms and conditions governing
the Rights prior to the date hereof and pursuant to which the Company appointed the Rights Agent to act as rights agent; 
 WHEREAS, on
August 7, 2003, in connection with the increase in the authorized common stock of the Company, the Company and the Rights Agent entered into an Amended and Restated Rights Agreement (the “Restated Rights Agreement”);

 WHEREAS, the Company and the Rights Agent desire to amend the Restated Rights Agreement on the terms and conditions set forth herein;

  

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 WHEREAS, this Agreement amends and restates in all respects the Restated Rights Agreement; and

 NOW, THEREFORE, 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: 
 1.1 “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 more of the Common Shares of the Company then outstanding but shall not include an Exempt
Person (as such term is hereinafter defined). Notwithstanding the first sentence of this Section 1.1, 
 (i) no Person
shall become an “Acquiring Person” due to such Person becoming the Beneficial Owner of 15% or more of the Common Shares as a result of the issuance by the Company of Common Shares to such Person in consideration for the sale, contribution,
conveyance, transfer, assignment or delivery of property, services or other assets by such Person to the Company, 
 (ii) 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 more of the Common Shares of the Company then outstanding, 
 (iii) no Person shall become an “Acquiring
Person” as the result of the acquisition of Common Shares from an individual who, on Rights Dividend Declaration Date, is the Beneficial Owner of 15% or more of the Common Shares if such Common Shares are received upon that individual’s
death pursuant to that individual’s will or pursuant to a charitable trust created by that individual for estate planning purposes, and 
 (iv) no Person shall become an “Acquiring Person” as the result of the beneficial ownership of (A) Common Shares beneficially owned by such Person on the Rights Dividend Declaration Date (an
“Existing Holder”) unless such Person becomes, after the Rights Dividend Declaration Date, the Beneficial Owner of an additional 1% or more of the Common Shares outstanding or (B) Common Shares beneficially owned as the result
of stock dividends, subdivisions or similar transactions with respect to Common Shares; 
 provided, however, that if a Person
shall become the Beneficial Owner of 15% or more of the Common Shares of the Company then outstanding by reason of (x) the issuance by the Company of Common Shares to such Person, (y) share purchases by the Company or (z) shares
received upon an individual’s death as aforesaid and shall thereafter become the Beneficial Owner of one or more additional Common Shares of the Company 

  

 2 








 
(other than pursuant to a dividend or distribution paid or made by the Company on the outstanding Common Shares in Common Shares or pursuant to a split or
subdivision of the outstanding Common Shares), then such Person shall be deemed to be an “Acquiring Person” unless upon becoming the Beneficial Owner of such additional Common Shares such Person does not beneficially own 15% or more of the
Common Shares then outstanding. 
 1.1.2 Notwithstanding the foregoing, if the Board of Directors determines in good faith
that a Person who would otherwise be an “Acquiring Person,” as defined pursuant to the foregoing provisions of this Section 1.1, has become such inadvertently (including, without limitation, because (A) such Person was unaware
that it beneficially owned a percentage of Common Shares that would otherwise cause such Person to be an “Acquiring Person”, (B) such Person was aware of the extent of its Beneficial Ownership of Common Shares but had no actual
knowledge of the consequences of such Beneficial Ownership under this Agreement or (C) such Person became an “Acquiring Person” as the result of the formation of a group (as that term is used in the definition of “Person” in
this Agreement) and such Person had no actual knowledge of the consequences of the formation of such a group under this Agreement), and without any intention of changing or influencing control of the Company, and such Person, if requested by the
Board of Directors, divests itself as promptly as reasonably practicable of Beneficial Ownership of a sufficient number of Common Shares so that such Person would no longer be an Acquiring Person, as defined pursuant to the foregoing provisions of
this Section 1.1, then such Person shall not be deemed to be or have become an “Acquiring Person” at any time for any purposes of this Agreement ; provided, however, that if such Person shall again become the Beneficial Owner of 15%
or more of the Common Shares then outstanding, such Person shall be deemed to be an “Acquiring Person” subject to the exceptions set forth in this Section 1.1. 
 1.1.3 For all purposes of this Agreement, any calculation of the number of Common Shares outstanding at any particular time, including for
purposes of determining the particular percentage of such outstanding Common Shares of which any Person is the Beneficial Owner, shall be made in accordance with the last sentence of Rule 13d-3(d)(1)(i) 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. 
 1.2 “Affiliate” and “Associate” shall have the respective meanings ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under the Exchange Act, as in effect on the date of this
Agreement. 
 1.3 A Person shall be deemed the “Beneficial Owner” of and shall be deemed to
“beneficially own” any securities: 
 (i) which such Person or any of such Person’s Affiliates or Associates
beneficially owns, directly or indirectly (as determined pursuant to Rule 13d-3 of the General Rules and Regulations under the Exchange Act, as in effect on the date of this Agreement, subject to Section 1.1.2); 
  

 3 








 (ii) which such Person or any of such Person’s Affiliates or Associates, directly or
indirectly, has (A) the right to acquire (whether such right is exercisable immediately, or only after the passage of time, compliance with regulatory requirements, fulfillment of a condition or otherwise) pursuant to any agreement, arrangement
or understanding, whether or not in writing (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, warrants or options, or otherwise; provided, however, that a Person shall not be deemed the Beneficial Owner of, or to beneficially own, (w) securities tendered pursuant to a tender or exchange offer made by or on behalf of such
Person or any of such Person’s Affiliates or Associates until such tendered securities are accepted for purchase or exchange, (x) securities which such Person has a right to acquire upon the exercise of Rights at any time prior to the time
that any Person becomes an Acquiring Person, (y) securities issuable upon the exercise of Rights from and after the time that any Person becomes an Acquiring Person if such Rights were acquired by such Person or any of such Person’s
Affiliates or Associates prior to the Distribution Date or pursuant to Section 3.1 or Section 22 (“Original Rights”) or pursuant to Section 11.9 or Section 11.15 with respect to an adjustment to Original Rights
or (z) securities which such Person or any of such Person’s Affiliates or Associates may acquire, does or do acquire or may be deemed to have the right to acquire, pursuant to any merger or other acquisition agreement between the Company
and such Person (or one or more of his Affiliates or Associates) if such agreement has been approved by the Board of Directors prior to such Person’s becoming an Acquiring Person; or (B) the right to vote pursuant to any agreement,
arrangement or understanding (whether or not in writing); provided, however, that a Person shall not be deemed the Beneficial Owner of, or to beneficially own, any security under this clause (B) 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 of the Exchange Act
and (2) is not also then reportable on Schedule 13D under the Exchange Act (or any comparable or successor report); or 
 (iii) which are beneficially owned, directly or indirectly, by any other Person (or any Affiliate or Associate thereof) and with respect to 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), whether or not in writing, for the purpose of acquiring, holding,
voting (except pursuant to a revocable proxy or consent as described in the proviso to Section 1.3(ii)(B)) or disposing of any securities of the Company; provided, however, that no Person who is an officer, director, trustee or employee of an
Exempt Person shall be deemed, solely by reason of such Person’s status or authority as such, to be the “Beneficial Owner” of, to have “Beneficial Ownership” of or to “beneficially own” any securities that are
“beneficially owned” (as defined in this Section 1.3), including, without limitation, in a fiduciary capacity, by an Exempt Person or by any other such officer, director, trustee or employee of an Exempt Person. 
  

 4 








 1.4 “Board of Directors” shall mean the Board of Directors of the
Company. 
 1.5 “Business Day” shall mean any day other than a Saturday, Sunday, or a day on which banking
institutions in the State of California, New Jersey or New York are authorized or obligated by law or executive order to close. 
 1.6 “Close of Business” on any given date shall mean 5:00 p.m., Pacific time, on such date; provided, however, that if such date is not a Business Day it shall mean 5:00 p.m., Pacific time, on the next succeeding Business
Day. 
 1.7 “Common Shares” shall mean the shares of common stock, $.001 par value per share, of the Company;
provided, however, that “Common Shares” when used with reference to any Person other than the Company shall mean the capital stock with the greatest voting power, or the equity securities or other equity interest having power to control or
direct the management, of such other Person or, if such Person is a Subsidiary (as such term is hereinafter defined) of another Person, the Person or Persons which ultimately control such first-mentioned Person, and which has issued and outstanding
such capital stock, equity securities or equity interest. 
 1.8 “Exempt Person” shall mean (A) the
Company, (B) any Subsidiary of the Company, or (C) any employee benefit plan of the Company or of any Subsidiary of the Company or any entity or trustee holding shares of stock of the Company for or pursuant to the terms of any such plan,
or for the purpose of funding other employee benefits for employees of the Company or any Subsidiary of the Company. 
 1.9
“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. 
 1.10
“Person” shall mean any individual, partnership, joint venture, limited liability company, firm, corporation, unincorporated association, trust, group (as such term is used in Rule 13d-5 of the General Rules and Regulations under
the Exchange Act) or other entity, and shall include any successor (by merger or otherwise) of such entity. 
 1.11
“Shares Acquisition Date” shall mean the first date of public announcement (which, for purposes of this definition, shall include, without limitation, the filing of a report pursuant to Section 13(d) of the Exchange Act or
pursuant to a comparable successor statute) by the Company or an Acquiring Person that an Acquiring Person has become such or that discloses information which reveals the existence of an Acquiring Person or any earlier date on which a majority of
the Board of Directors shall become aware of the existence of an Acquiring Person. 
 1.12 “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 interests is owned, of record or beneficially, directly or indirectly, by such Person. 
  

 5 








 1.13 “Transaction” shall mean (A) the Company’s consolidation
with, or merger with or into, any other Person, as a result of which the Company is not the continuing or surviving corporation, (B) any Person’s consolidation with, or merger with or into the Company, as a result of which the Company is
the continuing or surviving corporation and, in connection with such consolidation or merger, all or part of the outstanding Common Shares is changed into or exchanged for stock or other securities of the Company or any other Person or cash or any
other property, or (C) the Company’s sale or other transfer (or one or more of its Subsidiaries’ sale or other transfer), in one transaction or a series of related transactions, of assets or earning power aggregating more than 50% of
the assets or earning power of the Company and its Subsidiaries (taken as a whole) to any Person or Persons (other than the Company or one or more wholly-owned Subsidiaries of the Company in one or more transactions each of which complies with
Section 11.14). 
 1.14 “Transaction Person” with respect to a Transaction shall mean (A) any
Person who (i) is or will become an Acquiring Person or a Principal Party (as such term is hereinafter defined) if the Transaction were to be consummated and (ii) directly or indirectly proposed or nominated a director of the Company which
director is in office at the time of consideration of the Transaction, or (B) an Affiliate or Associate of such a Person. 
 1.15 A “Trigger Event” shall be deemed to have occurred upon any Person becoming an Acquiring Person. 
 The
following terms shall have the meanings defined for such terms in the Sections set forth below: 
  

			
	 Term
	  	 Section

	 Adjustment Shares
	  	11.1.2
	 Agreement
	  	Preamble
	 Beneficial Owner
	  	1.3
	 Preferred Shares
	  	Recitals
	 Common Stock Equivalent
	  	11.1.3
	 Company
	  	Preamble
	 Current Per Share Market Price
	  	11.4.1
	 Current Value
	  	11.1.3
	 Distribution Date
	  	3.1
	 Equivalent Preferred Stock
	  	11.2
	 Exchange Act
	  	1.1.3
	 Exchange Consideration
	  	27.1
	 Existing Holder
	  	1.1(iv)
	 Expiration Date
	  	7.1
	 Final Expiration Date
	  	7.1
	 Injunction
	  	11.1.2
	 Original Rights
	  	1.3(ii)
	 Preferred Shares
	  	Recitals
	 Principal Party
	  	13.3
	 Purchase Price
	  	4.1
	 Record Date
	  	Recitals

  

 6 









			
	 Redemption Date
	  	7.1
	 Redemption Price
	  	23.1
	 Restated Rights Agreement
	  	Recitals
	 Right
	  	Recitals
	 Right Certificate
	  	3.1
	 Rights Agent
	  	Preamble
	 Rights Dividend Declaration Date
	  	Recitals
	 Securities Act
	  	9
	 Security
	  	11.4.1
	 Spread
	  	11.1.3
	 Substitution Period
	  	11.1.3
	 Summary of Rights
	  	3.2
	 Trading Day
	  	11.4.1
	 Trust
	  	27.1
	 Trust Agreement
	  	27.1

 SECTION 2. APPOINTMENT OF RIGHTS AGENT. The Company has appointed the Rights Agent to act
as agent for the Company in accordance with the terms and conditions hereof, and the Rights Agent has accepted such appointment. The Company may from time to time appoint such co-Rights Agents as it may deem necessary or desirable upon ten
(10) days’ prior written notice to the Rights Agent. The Rights Agent shall have no duty to supervise, and shall in no event be liable for, the acts or omissions of any such co-Rights Agent. In the event the Company appoints one or more
co-Rights Agents, the respective duties of the Rights Agent and any co-Rights Agent shall be as the Company shall determine. Contemporaneously with such appointment, if any, the Company shall notify the Rights Agent in writing of such appointment
and of the respective duties of the Rights Agent and the co-Rights Agent. 
 SECTION 3. ISSUANCE OF RIGHT CERTIFICATES. 
 3.1 Rights Represented by Share Certificates. Until the earlier of (i) the tenth day after the Shares Acquisition Date (or if
the tenth day after the Shares Acquisition Date occurs before the Record Date, the Close of Business on the Record Date) or (ii) the tenth Business Day after the date of the commencement of, or first public announcement of the intent of any
Person (other than an Exempt Person) to commence, a tender or exchange offer the consummation of which would result in any Person (other than an Exempt Person) becoming the Beneficial Owner of Common Shares aggregating 15% or more of the then
outstanding Common Shares of the Company (the earlier of (i) and (ii) being herein referred to as the “Distribution Date”), (x) the Rights (unless earlier expired, redeemed or terminated) will be represented (subject to the
provisions of Section 3.2) by the certificates for Common Shares registered in the names of the holders thereof (which certificates for Common Shares shall also be deemed to be Right Certificates) or, for Common Shares held in book-entry
accounts through the direct registration service of the Company’s transfer agent, by such book-entry accounts (together with a direct registration transaction advice with respect to such shares), and not by separate certificates, and
(y) the Rights (and the right to receive certificates therefor) will be transferable only in connection with the transfer of the underlying 

  

 7 








 
Common Shares. The preceding sentence notwithstanding, prior to the occurrence of a Distribution Date as a result of an event described in clause
(ii) (or such later Distribution Date as the Board of Directors may select pursuant to this sentence), the Board of Directors may postpone, one or more times, the Distribution Date which would occur as a result of an event described in clause
(ii) beyond the date set forth in such clause (ii). Nothing herein shall permit such a postponement of a Distribution Date after a Person becomes an Acquiring Person, except as a result of the operation of Section 1.1.1. As soon as
practicable after the Distribution Date, the Company will prepare and execute, the Rights Agent will countersign and the Company will (i) send (or, if requested and provided with a list of holders of Common Shares, the Rights Agent will send),
by first-class, postage-prepaid mail, to each record holder of Common Shares as of the close of business on the Distribution Date (other than any Acquiring Person or any Associate or Affiliate of an Acquiring Person), at the address of such holder
shown on the records of the Company, one or more certificates for Rights, in substantially the form of Exhibit B hereto (a “Right Certificate”), representing one Right (subject to adjustment as provided herein) for each Common Share, or
(ii) credit the book-entry account of such holder with such Rights and send a direct registration transaction advice with respect to such Rights to such holder. As of the Distribution Date, the Rights will be represented solely by such Right
Certificates or such book-entry credits and related direct registration transaction advices. In the event the Company elects to distribute any Rights by crediting book-entry accounts, the provisions of this Agreement that reference Rights
Certificates shall be interpreted to reflect that the Rights are credits to the book-entry accounts, that separate Rights Certificates are not issued with respect to some or all of the Rights, and that any legend required on a Rights Certificate may
be placed on the direct registration transaction advice with respect to such Rights. The absence of specific language regarding book-entry accounts and credits in any provision of this Agreement shall not be interpreted to mean that the foregoing
sentence is not applicable as appropriate to such provision. In the event that an adjustment in the number of Rights per Common Share has been made pursuant to Section 11.15 hereof, at the time of distribution of the Rights Certificates the
Company shall make the necessary and appropriate rounding adjustments (in accordance with Section 14.1 hereof) so that Rights Certificates evidencing only whole numbers of Rights are distributed and cash is paid in lieu of any fractional
Rights. The Company shall promptly notify the Rights Agent in writing upon the occurrence of the Distribution Date and, if such notification is given orally, the Company shall confirm same in writing on or prior to the Business Day next following.
Until such notice is received by the Rights Agent, the Rights Agent may presume conclusively for all purposes that the Distribution Date has not occurred. 
 3.2 Summary of Rights. The Company has sent a copy of a Summary of Rights to Purchase Preferred Shares, in substantially the form attached hereto as Exhibit C (the “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 close of business on the Record Date, until the Distribution Date (or the earlier Expiration Date), the Rights associated with (i) the Common Shares represented by certificates will be represented by such certificates for Common Shares
registered in the names of the holders thereof and (ii) the Common Shares held in book-entry accounts shall be held in book-entry accounts and represented by the related transaction advice, and in either 

  

 8 








 
case the registered holders of the Common Shares shall also be registered holders of the associated Rights. Until the Distribution Date (or the earlier
Expiration Date), the surrender for transfer of any certificate for Common Shares outstanding at the close of business on the Record Date, with or without a copy of the Summary of Rights, shall also constitute the transfer of the Rights associated
with the Common Shares represented thereby. 
 3.3 New Certificates After Record Date. The Company shall cause
certificates for Common Shares which become outstanding (whether upon issuance out of authorized but unissued Common Shares or transfer or exchange of outstanding Common Shares) after the Record Date, but prior to the earlier of the Distribution
Date or the Expiration Date, to be impressed, printed, stamped, written or otherwise affixed with a legend in substantially the following form: 
 “This certificate also represents and entitles the holder hereof to certain rights (“Rights”) as set forth in an agreement between BioMarin Pharmaceutical Inc. (the “Company”) and Mellon Investor Services LLC as
Rights Agent, dated as of September 11, 2002, as the same may be amended from time to time (the “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 the Company. Under certain circumstances, as set forth in the Agreement, such Rights will be represented by separate certificates and will no longer be represented by this certificate. The Company will mail to the holder of this
certificate a copy of the Agreement without charge after receipt of a written request therefor. As described in the Agreement, Rights which are owned by, transferred to or have been owned by Acquiring Persons or Associates or Affiliates thereof (as
defined in the Agreement) shall become null and void and will no longer be transferable.” 
 Each book-entry account for
such Common Shares that shall so become outstanding or shall be transferred or exchanged after the Record Date but prior to the earlier of the Distribution Date, the Redemption Date or the Expiration Date shall also be deemed to include the
associated Rights, and the direct registration transaction advice with respect to such shall bear a legend in substantially the following form: 
 “Each security covered by this Advice entitles the holder hereof to certain rights (“Rights”) as set forth in an agreement between BioMarin Pharmaceutical Inc. (the “Company”) and Mellon Investor Services LLC as
Rights Agent, dated as of September 11, 2002, as the same may be amended from time to time (the “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 the Company. Under certain circumstances, as set forth in the Agreement, such Rights will be represented by separate certificates or be covered by separate 

  

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book-entry credits and will no longer be covered by this Advice. The Company will mail to the holder of this certificate a copy of the Agreement without
charge after receipt of a written request therefor. As described in the Agreement, Rights which are owned by, transferred to or have been owned by Acquiring Persons or Associates or Affiliates thereof (as defined in the Agreement) shall become null
and void and will no longer be transferable.” 
 With respect to such Common Shares described in this Section 3,
until the Distribution Date (or the earlier Expiration Date), the Rights associated with the Common Shares represented by such certificates or held in such book-entry accounts shall be represented by such certificates or such book-entry accounts
(together with the direct registration transaction advice with respect to such shares) alone, and the surrender for transfer of any such certificates, whether by transfer of physical certificates or book-entry transfer, except as otherwise provided
herein, 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, any
Rights associated with such Common Shares shall be deemed cancelled and retired so that the Company shall not be entitled to exercise any Rights associated with the Common Shares which are no longer outstanding. 
 Notwithstanding this Section 3.3, the omission of a legend shall not affect the enforceability of any part of this Agreement or the
rights of any holder of the Rights. 
 SECTION 4. FORM OF RIGHT CERTIFICATES. 
 4.1 The Right Certificates (and the forms of election to purchase shares, certification and assignment to be printed on the reverse
thereof) shall be substantially in the form of Exhibit B hereto and may have such marks of identification or designation and such legends, summaries or endorsements printed thereon as the Company may deem appropriate, which do not affect the rights,
duties or responsibilities of the Rights Agent 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 trading system on which the Rights may from time to time be listed or quoted, or to conform to usage. Subject to the terms and conditions hereof, the Right Certificates, whenever issued, shall be dated as of the
Record Date, and shall show the date of countersignature by the Rights Agent, and on their face shall entitle the holders thereof to purchase such number of two-hundredths of a Preferred Share as shall be set forth therein at the price per
two-hundredth of a Preferred Share set forth therein (the “Purchase Price”), but the number of such two-hundredths of a Preferred Share and the Purchase Price shall be subject to adjustment as provided herein. 
 4.2 The Company shall cause any Rights Certificate issued pursuant to Sections 3.1 or Section 22 hereof that evidences Rights
beneficially owned by any Person known to be (i) an Acquiring Person or any Associate or Affiliate of an Acquiring Person, (ii)

  

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a transferee of any Person (or of any Associate or Affiliate of any Person) who becomes a transferee after such Person becomes an Acquiring Person, or
(iii) a transferee of any Person (or of any Associate or Affiliate of any Person) who becomes a transferee prior to or concurrently with such Person becoming an Acquiring Person and receives such Rights pursuant to either (A) a transfer
(whether or not for consideration) from such Acquiring Person to holders of equity interests in such Acquiring Person or to any Person with whom such Acquiring Person has any continuing agreement, arrangement or understanding regarding the
transferred Rights, or (B) a transfer that the Board of Directors of the Company has determined is part of a plan, arrangement or understanding that has as a primary purpose or effect avoidance of Section 7.5 hereof, and any Rights
Certificate issued pursuant to Section 6 or Section 11 hereof upon transfer, exchange, replacement or adjustment of any other Rights Certificate referred to in this sentence, to contain (to the extent feasible) a legend in substantially
the following form: 
 “The Rights evidenced by this Rights Certificate are or were beneficially owned by a Person who was or became an
Acquiring Person or an Affiliate or Associate of an Acquiring Person (as such terms are defined in the Amended and Restated Rights Agreement between the Company and the Rights Agent and its successors (the “Rights Agreement”)).
Accordingly, this Rights Certificate and the Rights evidenced hereby may become null and void in the circumstances specified in Section 7.6 of the Rights Agreement.” 
 SECTION 5. COUNTERSIGNATURE AND REGISTRATION. The Right Certificates shall be duly executed on behalf of the Company by its Chairman of the Board
of Directors, Chief Executive Officer or any Vice President, either manually or by facsimile signature, and shall have affixed thereto the Company’s seal or a facsimile thereof which shall be attested by the Secretary, or any Assistant
Secretary, of the Company, either manually or by facsimile signature. The Right Certificates shall be countersigned, either manually or by facsimile signature, by an authorized signatory of the Rights Agent, but it shall not be necessary for the
same signatory to countersign all of the Right Certificates hereunder. No Right Certificate shall be valid for any purpose unless so countersigned. In case any officer of the Company who shall have signed any of the Right Certificates shall cease to
be such officer of the Company before countersignature by the Rights Agent and issuance and delivery by the Company, such Right Certificates, nevertheless, may be countersigned by the Rights Agent, and issued and delivered by the Company with the
same force and effect as though the 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 Agreement any such person was not such an officer. 
 Following the Distribution Date and receipt by the Rights Agent of notice to that effect and all relevant information referred to in Section 3.1,
the Rights Agent will keep or cause to be kept, at its office, designated to the Company for such purposes, 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 represented on its face by each of the Right Certificates, the certificate number of each of the Right Certificates and the date of each of the Right Certificates. 
  

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 SECTION 6. TRANSFER, SPLIT UP, COMBINATION AND EXCHANGE OF RIGHT CERTIFICATES; MUTILATED, DESTROYED,
LOST OR STOLEN RIGHT CERTIFICATES. Subject to the provisions of Sections 7.6, 11.1.2 and Section 14, at any time after the Close of Business on the Distribution Date, and at or prior to the Close of Business on the Expiration Date, any
Right Certificate or Right Certificates (other than Right Certificates representing Rights that have become void pursuant to Section 11.1.2 or that have been exchanged pursuant to Section 27) may be transferred, split up or combined or
exchanged for another Right Certificate or Right Certificates, entitling the registered holder to purchase the same number of two-hundredths 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 or combine or exchange any Right Certificate shall make such request in writing delivered to the Rights Agent, and shall surrender, together with any required form of assignment and
certificate duly completed, the Right Certificate or Right Certificates to be transferred, split up or combined or exchanged at the office of the Rights Agent designated for such purpose. The Rights Certificates are transferable only on the registry
books of the Rights Agent. Neither the Rights Agent nor the Company shall be obligated to take any action whatsoever with respect to the transfer of any such surrendered Right Certificate or Right Certificates until the registered holder thereof
shall have properly completed and duly signed the certification contained in the form of assignment on the reverse side of such Right Certificate or Right Certificates and shall have provided such additional evidence of the identity of the
Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof of the Rights evidenced thereby as the Company and/or the Rights Agent shall reasonably request and paid a sum sufficient to cover any tax or charge that may be
imposed in connection with any transfer, split up, combination or exchange of Rights Certificates as required by Section 9 hereof. 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, registered in such name or names as may be designated by the surrendering registered holder. The Company may require payment from the holders of Right Certificates of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with any transfer, split up or combination or exchange of such Right Certificates. The Rights Agent shall have no duty or obligation under this Section 6 unless and until it is
satisfied that all such taxes and/or charges have been paid in full. 
 Subject to the provisions of Section 11.1.2, at any time after
the Distribution Date and prior to the Expiration Date, 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 satisfactory to them, and, 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 countersignature and delivery to the registered holder in lieu of the Right Certificate so lost, stolen, destroyed or mutilated. 

 

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 SECTION 7. EXERCISE OF RIGHTS; PURCHASE PRICE; EXPIRATION DATE OF RIGHTS. 
 7.1 Exercise of Rights. Subject to Section 11.1.2 and except as otherwise provided herein, the registered holder of any Right
Certificate may exercise the Rights represented thereby 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 and certification on the reverse side thereof properly
completed and duly executed, to the Rights Agent at the office of the Rights Agent designated for such purpose, together with payment of the aggregate Purchase Price for the total number of two-hundredths of a Preferred Share (or other securities,
cash or other assets) as to which the Rights are exercised, at or prior to the time (the “Expiration Date”) that is the earliest of (i) the Close of Business on September 23, 2012 (the “Final Expiration Date”),
(ii) the time at which the Rights are redeemed as provided in Section 23 (the “Redemption Date”), (iii) the closing of any merger or other acquisition transaction involving the Company pursuant to an agreement of the type
described in Sections 1.3(ii)(A)(z) and 13.4, at which time the Rights are terminated, or (iv) the time at which the Rights are exchanged as provided in Section 27. 
 7.2 Purchase. The Purchase Price for each two-hundredth of a Preferred Share pursuant to the exercise of a Right shall be initially
$35.00, shall be subject to adjustment from time to time as provided in Section 11, Section 13 and Section 26 and shall be payable in lawful money of the United States of America in accordance with Section 7.3. 
 7.3 Payment Procedures. Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase
and certification duly executed, accompanied by payment of the aggregate Purchase Price for the total number of two-hundredths of a Preferred Share to be purchased and an amount equal to any applicable transfer tax or charge required to be paid by
the holder of such Right Certificate in accordance with Section 9, in cash or by certified check, cashier’s check, bank draft 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 (or make available, if the Rights Agent is the transfer agent) certificates for the number of Preferred Shares to be purchased and the Company hereby irrevocably authorizes its transfer agent to comply
with all such requests, or (B) if the Company shall have elected to deposit the total number of Preferred Shares issuable upon exercise of the Rights hereunder with a depositary agent, requisition from the depositary agent depositary receipts
representing interests in such number of two-hundredths 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 depositary agent)
and the Company hereby directs the depositary agent to comply with all such requests, (ii) when appropriate, requisition from the Company the amount of cash to be paid in lieu of the issuance of fractional shares in accordance with
Section 14.1 or otherwise in accordance with Section 11.1.3, (iii) promptly after receipt of such certificates or depositary receipts, cause the same to be delivered to or upon the order of the registered holder of such Right
Certificate, registered in such name or names as may be designated by such holder and (iv) when appropriate, after receipt, promptly deliver such cash to or upon the order of the registered holder of such Right Certificate. In the event that
the Company is obligated to issue other securities of the Company, pay cash and/or distribute other property pursuant to Section 11.1.3, the Company will make all arrangements necessary so that such other securities, cash and/or other property
are available for distribution by the Rights Agent, if and when necessary to comply with this Agreement. 
  

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 7.4 Partial Exercise. In case the registered holder of any Right Certificate shall
exercise less than all the Rights represented thereby, a new Right Certificate representing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent and delivered to the registered holder of such Right Certificate or
to his duly authorized assigns, subject to the provisions of Section 6 and Section 14. 
 7.5 Rights held by an
Acquiring Person. Notwithstanding anything in this Agreement to the contrary, from and after the first occurrence of a Trigger Event, any Rights beneficially owned by (i) an Acquiring Person or an Associate or Affiliate of an Acquiring
Person, (ii) a transferee of any Person (or of any Associate or Affiliate of any Person) who becomes a transferee after such Person becomes an Acquiring Person, or (iii) a transferee of any Person (or of any Associate or Affiliate of any
Person) who becomes a transferee prior to or concurrently with such Person becoming an Acquiring Person and receives such Rights pursuant to either (A) a transfer (whether or not for consideration) from such Acquiring Person (or any Affiliate
or Associate thereof) to holders of equity interests in such Acquiring Person (or any Affiliate or Associate thereof) or to any Person with whom such Acquiring Person (or any Affiliate or Associate thereof) has any continuing agreement, arrangement
or understanding regarding the transferred Rights or (B) a transfer that the Board of Directors of the Company has determined is part of a plan, agreement, arrangement or understanding that has as a primary purpose or effect the avoidance of
this Section 7.5, shall become null and void without any further action and no holder of such Rights shall have any rights whatsoever with respect to such Rights, whether under any provision of this Agreement or otherwise. The Company shall
notify the Rights Agent when this Section 7.5 applies and shall use all reasonable efforts to ensure that the provisions of Sections 7.5 and 4.2 hereof are complied with, but neither the Company nor the Rights Agent shall have any liability to
any holder of Rights Certificates or other Person as a result of the Company’s failure to make any determinations with respect to an Acquiring Person or any of its Affiliates, Associates or transferees hereunder. 
 7.6 Full Information Concerning Ownership. Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor
the Company shall be obligated to undertake any action with respect to a registered holder of Rights 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 shall have been properly completed and duly signed by the registered holder thereof and the Company shall 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 or the Rights Agent shall reasonably request. 
 SECTION 8. CANCELLATION AND DESTRUCTION OF RIGHT CERTIFICATES. All Right Certificates surrendered for the purpose of exercise, transfer, split-up, combination or exchange shall, if surrendered to the Company or
to any of its agents, be delivered to the Rights Agent for cancellation or in cancelled form, or, if surrendered to the 

  

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Rights Agent, shall be cancelled by it, and no Right Certificates shall be issued in lieu thereof except as expressly permitted by any of the provisions of
this 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 deliver all cancelled Right Certificates to the Company, or shall, at the written request of the Company, destroy such cancelled Right Certificates, and in such case shall deliver a certificate of destruction thereof
to the Company. 
 SECTION 9. RESERVATION AND AVAILABILITY OF STOCK. The Company covenants and agrees that from and after the
Distribution Date it will cause to be reserved and kept available out of its authorized and unissued Preferred Shares (and, following the occurrence of a Trigger Event, out of its authorized and unissued Common Shares or other securities) the number
of Preferred Shares (and, following the occurrence of a Trigger Event, Common Shares and/or other securities) that will be sufficient to permit the exercise in full of all outstanding Rights. 
 So long as the Preferred Shares (and, following the occurrence of a Trigger Event, Common Shares and/or other securities) issuable upon the exercise of
Rights may be listed on any stock exchange or traded in the over-the-counter market and quoted on an automated quotation system or such other system then in use, the Company shall use its best efforts to cause, from and after such time as the Rights
become exercisable, all shares reserved for such issuance to be listed or admitted to trading on such exchange or quoted on an automated quotation system or such other system then in use upon official notice of issuance upon such exercise.

 The Company covenants and agrees that it will take all such action as may be necessary to ensure that all Preferred Shares (and, following
the occurrence of a Trigger Event, Common Shares and/or other securities) delivered upon exercise of Rights shall, at the time of delivery of the certificates for such shares (subject to payment of the Purchase Price), be duly and validly authorized
and issued and fully paid and nonassessable shares. 
 From and after such time as the Rights become exercisable, the Company shall use its
best efforts, if then necessary to permit the issuance of Preferred Shares upon the exercise of Rights, to register and qualify such Preferred Shares under the Securities Act of 1933, as amended (the “Securities Act”) and any applicable
state securities or “Blue Sky” laws (to the extent exemptions therefrom are not available), cause such registration statement and qualifications to become effective as soon as possible after such filing and keep such registration and
qualifications effective until the earlier of the date as of which the Rights are no longer exercisable for such securities and the Expiration Date. The Company may temporarily suspend, for a period of time not to exceed ninety (90) days, the
exercisability of the Rights in order to prepare and file a registration statement under the Securities Act and permit it to become effective. Upon any such suspension, the Company shall promptly notify the Rights Agent thereof and issue a public
announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement (with prompt written notice thereof to the Rights Agent) at such time as the suspension is no longer in effect. In addition,
if the Company shall determine that a registration statement is required 

  

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following the Distribution Date, and a Trigger Event has not occurred, the Company may temporarily suspend (and shall give the Rights Agent prompt written
notice thereof) the exercisability of Rights until such time as a registration statement has been declared effective. 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 shall have been obtained and until a registration statement under the Securities Act (if required) shall have been declared effective. 
 The Company further covenants and agrees that it will pay when due and payable any and all taxes and charges which may be payable in respect of the
issuance or delivery of the Right Certificates or of any Preferred Shares (or Common Shares and/or other securities, as the case may be) upon the exercise of Rights. The Company shall not, however, be required to pay any tax or charge which may be
payable in respect of any transfer or delivery of Right Certificates to a Person other than, or the issuance or delivery of certificates for the Preferred Shares (or Common Shares and/or other securities, as the case may be) in a name other than
that of, the registered holder of the Right Certificate representing Rights surrendered for exercise or to issue or deliver any certificates for Preferred Shares (or Common Shares and/or other securities, as the case may be) in a name other than
that of the registered holder upon the exercise of any Rights until any such tax or charge shall have been paid (any such tax or charge being payable by the holder of such Right Certificate at the time of surrender) or until it has been established
to the Company’s satisfaction that no such tax or charge is due. 
 SECTION 10. PREFERRED SHARES RECORD DATE. Each person in
whose name any certificate for Preferred Shares (or Common Shares and/or other securities, as the case may be) is issued (or in whose name a book-entry account for such securities is held) upon the exercise of Rights shall for all purposes be deemed
to have become the holder of record of the Preferred Shares (or Common Shares and/or other securities, as the case may be) represented thereby on, and such certificate (or, in the case of securities held in book-entry form, the related direct
transaction registration advice) shall be dated, the date upon which the Right Certificate representing such Rights was duly surrendered (or the transfer of the book-entry accounts effected) and payment of the Purchase Price (and any applicable
transfer taxes or charges) was made; provided, however, that if the date of such surrender (or transfer in book-entry form) and payment is a date upon which the Preferred Shares (or Common Shares and/or other securities, as the case may be) transfer
books of the Company are closed, such person shall be deemed to have become the record holder of such shares (fractional or otherwise) on, and such certificate (or, in the case of securities held in book-entry form, the related direct registration
transaction advice) shall be dated, the next succeeding Business Day on which the Preferred Shares (or Common Shares and/or other securities, as the case may be) transfer books of the Company are open. Prior to the exercise of the Rights represented
thereby, the holder of a Right Certificate (or book entry-account) 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 or to receive
dividends or other distributions, and shall not be entitled to receive any notice of any proceedings of the Company, except as provided herein. 
  

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 SECTION 11. ADJUSTMENT OF PURCHASE PRICE, NUMBER OF SHARES OR NUMBER OF RIGHTS. The Purchase
Price, the number of Preferred Shares or other securities or property purchasable upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. 
 11.1 Post-Execution Events. 
 11.1.1 Corporate Dividends, Reclassifications, Etc. In the event the Company shall at any time after the date of this Agreement (A) declare and pay 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 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 11.1, the Purchase Price in effect at the time of
the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of 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 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, such person 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 stock of the Company issuable upon exercise of one Right. If an event occurs which would require an adjustment under both Sections 11.1.1 and 11.1.2, the adjustment provided for in this
Section 11.1.1 shall be in addition to, and shall be made prior to, the adjustment required pursuant to, Section 11.1.2. 
 11.1.2 Acquiring Person Events; Trigger Events. Subject to Sections 23.1 and Section 27, in the event that a Trigger Event occurs, then, from and after the first occurrence of such event, each holder of a Right, except as
provided below, shall, for a period of sixty (60) days after the later of a Trigger Event or the effective date of an appropriate registration statement filed under the Securities Act (provided, however, that if at any time prior to the
expiration or termination of the Rights there shall be a temporary restraining order, an injunction or temporary suspension by the Board of Directors, or similar obstacle to exercise of the Rights (the “Injunction”) which prevents exercise
of the Rights, a new 60-day period shall commence on the date the Injunction is removed) have a right to receive, upon exercise thereof at a price per Right equal to the then-current Purchase Price multiplied by the number of two-hundredths of a
Preferred Share for which a Right is then exercisable (without giving effect to this Section 11.1.2), in accordance with the terms of this Agreement and in lieu of Preferred Shares, such number of Common Shares per Right as shall equal the
result obtained by (x) multiplying the then-current Purchase Price by the number of two-hundredths of a Preferred Share for which a Right is then exercisable (without giving effect to this Section 11.1.2) and (y) dividing that product
by 50% of the Current Per Share Market Price of the Common Shares (determined pursuant to Section 11.4) on the first of the date of the occurrence of, or the date of the first public announcement of, a Trigger Event (the “Adjustment
Shares”); provided that the Purchase Price and the number of Adjustment Shares 

  

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shall thereafter be subject to further adjustment as appropriate in accordance with Section 11.6. Notwithstanding the foregoing, upon the occurrence of
a Trigger Event, any Rights that are or have been acquired or beneficially owned by (1) any Acquiring Person or any Associate or Affiliate thereof, (2) a transferee of any Acquiring Person (or of any such Associate or Affiliate) who
becomes a transferee after the Acquiring Person becomes such, or (3) a transferee of any Acquiring Person (or of any such Associate or Affiliate) who becomes a transferee prior to or concurrently with the Acquiring Person becoming such and
receives such Rights pursuant to either (A) a transfer (whether or not for consideration) from the Acquiring Person to holders of equity interests in such Acquiring Person or to any Person with whom the Acquiring Person has any continuing
agreement, arrangement or understanding regarding the transferred Rights or (B) a transfer which the Board of Directors determines or has determined is part of a plan, arrangement or understanding which has as a primary purpose or effect
avoidance of this Section 11.1.2, and subsequent transferees, shall become null and void without any further action, and any holder (whether or not such holder is an Acquiring Person or an Associate or Affiliate of an Acquiring Person) of such
Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement or otherwise. The Company shall not enter into any transaction of the type described in this Section 11.1.2 if at the time of such transaction
there are any rights, warrants, instruments or securities outstanding or any arrangements which, as a result of the consummation of such transaction, would eliminate or substantially diminish the benefits intended to be afforded by the Rights. From
and after the Trigger Event, no Right Certificate shall be issued pursuant to Section 3 or Section 6 that represents Rights that are or have become void pursuant to the provisions of this paragraph, and any Right Certificate delivered to
the Rights Agent that represents Rights that are or have become void pursuant to the provisions of this paragraph shall be cancelled. 
 The Company shall use all reasonable efforts to ensure that the provisions of this Section 11.1.2 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 any determinations with respect to any Acquiring Person or its Affiliates, Associates or transferees hereunder. 
 From and after the occurrence of an event specified in Section 13.1, any Rights that theretofore have not been exercised pursuant to this Section 11.1.2 shall thereafter be exercisable only in accordance with Section 13 and
not pursuant to this Section 11.1.2. 
 11.1.3 Insufficient Shares. The Company may at its option substitute for a
Common Share issuable upon the exercise of Rights in accordance with the foregoing Section 11.1.2 a number of Preferred Shares or fraction thereof such that the Current Per Share Market Price of one Preferred Share multiplied by such number or
fraction is equal to the Current Per Share Market Price of one Common Share. In the event that upon the occurrence of one or more of the events listed in Section 11.1.2 above there shall not be sufficient Common Shares authorized but unissued
to permit the exercise in full of the Rights in accordance with the foregoing Section 11.1.2, the Company shall take all such action as may be necessary to authorize additional Common Shares for issuance upon exercise of the Rights, provided,
however, that if the Company determines that it is unable to cause the authorization of a sufficient number of additional Common Shares, then, in the event the 

  

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Rights become exercisable, the Company, with respect to each Right and to the extent necessary and permitted by applicable law and any agreements or
instruments in effect on the Rights Dividend Declaration Date to which it is a party, 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, the “Spread”) and (B) with respect to each Right (other than Rights which have become void pursuant to Section 11.1.2), make adequate provision to substitute for the Adjustment Shares,
upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Preferred Shares or other equity securities of the Company (including, without limitation, shares, or fractions of shares, of
preferred stock which, by virtue of having dividend, voting and liquidation rights substantially comparable to those of the Common Shares, the Board of Directors has deemed in good faith to have substantially the same value as Common Shares) (each
such share of preferred stock or fractions of shares of preferred stock constituting a “Common Stock Equivalent”), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an
aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors based upon the advice of a nationally recognized investment banking firm selected in good faith by the Board of Directors; provided,
however, that if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the first occurrence of a Trigger Event, then the Company shall be obligated to deliver, to
the extent necessary and permitted by applicable law and any agreements or instruments in effect on the Rights Dividend Declaration Date to which it is a party, upon the surrender for exercise of a Right and without requiring payment of the Purchase
Price, Common Shares (to the extent available) and then, if necessary, such number or fractions of Preferred Shares (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the
Board of Directors shall determine in good faith that it is unlikely that sufficient additional Common Shares could be authorized for issuance upon exercise in full of the Rights, the thirty (30) day period set forth above may be extended and
re-extended to the extent necessary, but not more than ninety (90) days following the first occurrence of one of the events listed in Section 11.1.2 above, in order that the Company may seek stockholder approval for the authorization of
such additional shares (such period as may be extended, the “Substitution Period”). To the extent that the Company determines that some action need be taken pursuant to the second and/or third sentences of this Section 11.1.3, the
Company (x) shall provide 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 pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall promptly notify the Rights Agent thereof
and issue a public announcement stating that the exercisability of the Rights has been temporarily suspended as well as a public announcement (with prompt notice thereof to the Rights Agent) at such time as the suspension is no longer in effect. For
purposes of this Section 11.1.3, the value of a Common Share shall be the Current Per Share Market Price (as determined pursuant to Section 11.4) on the date of the occurrence of a Trigger Event and the value of any “Common Stock
Equivalent” shall be deemed to have the same value as the Common Shares on such date. The Board of Directors may, but shall not be required to, establish procedures to allocate the right to receive Common Shares upon the exercise of the Rights
among holders of Rights pursuant to this Section 11.1.3. 
  

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 11.2 Dilutive Rights Offering. 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 securities having the same rights,
privileges and preferences as the Preferred Shares (“Equivalent Preferred Stock”)) or securities convertible into Preferred Shares or Equivalent Preferred Stock at a price per Preferred Share or per share of Equivalent Preferred Stock (or
having a conversion or exercise price per share, if a security convertible into or exercisable for Preferred Shares or Equivalent Preferred Stock) less than the Current Per Share Market Price of the Preferred Shares (as determined pursuant to
Section 11.4) 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 and shares of Equivalent Preferred Stock outstanding on such record date plus the number of Preferred Shares and shares of Equivalent Preferred Stock which the aggregate offering price of the total number of Preferred
Shares and/or shares of Equivalent Preferred Stock to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such Current Per Share Market Price and the denominator of which shall
be the number of Preferred Shares and shares of Equivalent Preferred Stock outstanding on such record date plus the number of additional Preferred Shares and/or shares of Equivalent Preferred Stock 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 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, whose determination shall be described in a statement filed with the Rights Agent and shall be conclusive and binding on the Rights Agent and the holders of the Rights for all purposes. Preferred Shares and shares of Equivalent Preferred
Stock owned by or held for the account of the Company or any Subsidiary of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustments shall be made successively whenever such a record date is fixed; and in
the event that such rights 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. 
 11.3 Distributions. 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, cash, securities or assets or convertible securities, or
subscription rights or warrants (excluding those referred to in Section 11.2), 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 Current Per Share Market Price of the Preferred Shares (as determined pursuant to Section 11.4) on such record date, less the fair market value (as determined in good faith by the Board of
Directors, whose determination shall be described in a statement 

  

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filed with the Rights Agent and shall be conclusive for all purposes) of the portion of the cash, assets, securities 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 (as determined pursuant to Section 11.4); 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 stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made
successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.

 11.4 Current Per Share Market Value. 
 11.4.1 General. For the purpose of any computation hereunder, the “Current Per Share Market Price” of any security (a
“Security” for the purpose of this Section 11.4.1) on any date shall be deemed to be the average of the daily closing prices per share of such Security for the thirty (30) consecutive Trading Days (as such term is hereinafter
defined) immediately prior to but not including such date; provided, however, that in the event that the Current Per Share Market Price of the Security is determined during any period following the announcement by the issuer of such Security of
(i) a dividend or distribution on such Security payable in shares of such Security or securities convertible into such shares or (ii) any subdivision, combination or reclassification of such Security, and prior to the expiration of thirty
(30) consecutive Trading Days after but not including the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, then, and in each such case, the “Current Per Share
Market Price” shall be appropriately adjusted to reflect the current market price per share equivalent of such Security. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day,
the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the New York Stock Exchange, The NASDAQ
Stock Market, or, if the Security is not listed or admitted to trading on the New York Stock Exchange or The NASDAQ Stock Market, as reported in the principal consolidated transaction reporting system with respect to securities listed on the
principal national securities exchange on which the Security is listed or admitted to trading, or, if the Security is not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of
the high bid and low asked prices in the over-the-counter market, as reported by an automated quotation system or such other system then in use, or, if on any such date the Security is not quoted by any such organization, the average of the closing
bid and asked prices as furnished by a professional market maker making a market in the Security selected by the Board of Directors. If on any such date no such market maker is making a market in the Security, the fair value of the Security on such
date as determined in good faith by the Board of Directors shall be used. 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. If the Security is not publicly held or not so listed or traded, or if on any such date the Security is not so
quoted and no such market maker is making a market in the Security, “Current Per 

  

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Share Market Price” shall mean the fair value per share as determined in good faith by the Board of Directors or, if at the time of such determination
there is an Acquiring Person, by a nationally recognized investment banking firm selected by the Board of Directors, which shall have the duty to make such determination in a reasonable and objective manner, whose determination shall be described in
a statement filed with the Rights Agent and shall be conclusive for all purposes. 
 11.4.2 Preferred Shares.
Notwithstanding Section 11.4.1, for the purpose of any computation hereunder, the “Current Per Share Market Price” of the Preferred Shares shall be determined in the same manner as set forth above in Section 11.4.1 (other than
the last sentence thereof). If the Current Per Share Market Price of the Preferred Shares cannot be determined in the manner described in Section 11.4.1, the “Current Per Share Market Price” of the Preferred Shares shall be
conclusively deemed to be an amount equal to 200 (as such number may be appropriately adjusted for such events as stock splits, stock dividends and recapitalizations with respect to the Common Shares occurring after the date of this Agreement)
multiplied by the Current Per Share Market Price of the Common Shares (as determined pursuant to Section 11.4.1). If neither the Common Shares nor the Preferred Shares are publicly held or so listed or traded, or if on any such date neither the
Common Shares nor the Preferred Shares are so quoted and no such market maker is making a market in either the Common Shares or the Preferred Shares, “Current Per Share Market Price” of the Preferred Shares shall mean the fair value per
share as determined in good faith by the Board of Directors, or, if at the time of such determination there is an Acquiring Person, by a nationally recognized investment banking firm selected by the Board of Directors, which shall have the duty to
make such determination in a reasonable and objective manner, which determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposes. For purposes of this Agreement, the “Current Per Share
Market Price” of one two-hundredth of a Preferred Share shall be equal to the “Current Per Share Market Price” of one Preferred Share divided by 200. 
 11.5 Insignificant Changes. No adjustment in the Purchase Price shall be required unless such adjustment would require an increase
or decrease of at least 1% in the Purchase Price. Any adjustments which by reason of this Section 11.5 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-millionth of a Preferred Share or the nearest one ten-thousandth of a Common Share or other share or security, as the case may be. Notwithstanding the first sentence of this
Section 11.5, 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 that mandate such adjustment, or (ii) the Expiration Date. 
 11.6 Shares Other Than Preferred Shares. If as a result of an adjustment made pursuant to Section 11.1, the holder of any
Right thereafter exercised shall become entitled to receive any shares of stock of the Company other than Preferred Shares, thereafter the number of such other shares so receivable upon exercise of any Right shall be subject to adjustment from time
to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Preferred Shares contained in Sections 11.1, 11.2, 11.3, 11.5, 11.8, 11.9 and 11.13, and the provisions of Section 7, Section 9,
Section 10, Section 13 and Section 14 with respect to the Preferred Shares shall apply on like terms to any such other shares. 
  

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 11.7 Rights Issued Prior to Adjustment. All Rights originally issued by the
Company subsequent to any adjustment made to the Purchase Price hereunder shall include the right to purchase, at the adjusted Purchase Price, the number of two-hundredths of a Preferred Share purchasable from time to time hereunder upon exercise of
the Rights, all subject to further adjustment as provided herein. 
 11.8 Effect of Adjustments. Unless the Company
shall have exercised its election as provided in Section 11.9, upon each adjustment of the Purchase Price as a result of the calculations made in Sections 11.2 and 11.3, each Right outstanding immediately prior to the making of such adjustment
shall thereafter include the right to purchase, at the adjusted Purchase Price, that number of two-hundredths of a Preferred Share (calculated to the nearest one-hundred thousandth of a Preferred Share) obtained by (i) multiplying (x) the
number of two-hundredths of a Preferred 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. 
 11.9 Adjustment in Number of
Rights. 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 two-hundredths of a Preferred Share issuable upon the exercise of a
Right. Each of the Rights outstanding after such adjustment of the number of Rights shall be exercisable for the number of two-hundredths of a Preferred Share for which a Right was exercisable immediately prior to such adjustment. Each Right held of
record prior to such adjustment of the number of Rights shall become that number of Rights (calculated to the nearest two-hundredth) 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 and promptly notify the Rights Agent in writing 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
ten (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 11.9, the Company may, as promptly as practicable, cause to be
distributed to holders of record of Right Certificates on such record date Right Certificates representing, subject to Section 14, 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 representing all the Rights to which such holders shall be entitled after such adjustment. Right Certificates so to be distributed shall be issued, executed and delivered by the Company, and countersigned and delivered by the
Rights Agent in the manner provided for herein (and may bear, at the option of the Company, the adjusted Purchase Price) and shall be registered in the names of the holders of record of Right Certificates on the record date specified in the public
announcement. 
  

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 11.10 Right Certificates Unchanged. Irrespective of any adjustment or change in
the Purchase Price or the number of two-hundredths of a Preferred Share issuable upon the exercise of the Rights, the Right Certificates theretofore and thereafter issued may continue to express the Purchase Price per share and the number of
two-hundredths of a Preferred Share which were expressed in the initial Right Certificates issued hereunder. 
 11.11 Par
Value Limitations. Before taking any action that would cause an adjustment reducing the Purchase Price below one two-hundredth of the then par value, if any, of the Preferred Shares or other shares of stock issuable upon exercise of the Rights,
the Company shall take any action which may, in the opinion of its counsel, be necessary in order that the Company may validly and legally issue fully paid and nonassessable Preferred Shares or other such shares at such adjusted Purchase Price.

 11.12 Deferred Issuance. 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 (and shall promptly notify the Rights Agent in writing of any such election) until the occurrence of such event the issuance to the holder of any Right
exercised after such record date of that number of Preferred Shares and shares of other stock or securities of the Company, if any, issuable upon such exercise over and above the Preferred Shares and shares of other stock or other securities, assets
or cash 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
representing such holder’s right to receive such additional shares upon the occurrence of the event requiring such adjustment. 
 11.13 Reduction in Purchase Price. Anything in this Section 11 to the contrary notwithstanding, the Company shall be entitled to make such reductions in the Purchase Price, in addition to those adjustments expressly required by
this Section 11, as and to the extent that it in its sole discretion shall determine to be advisable in order that any consolidation or subdivision of the Preferred Shares, issuance wholly for cash of any of the Preferred Shares at less than
the current market price, issuance wholly for cash of Preferred Shares or securities which by their terms are convertible into or exchangeable for Preferred Shares, dividends on Preferred Shares payable in Preferred Shares or issuance of rights,
options or warrants referred to above in this Section 11, hereafter made by the Company to holders of its Preferred Shares, shall not be taxable to such stockholders. 
 11.14 Company Not to Diminish Benefits of Rights. The Company covenants and agrees that after the earlier of the Shares Acquisition
Date or Distribution Date it will not, except as permitted by Section 23, Section 26 or Section 27, take (or permit any Subsidiary to take) any action if at the time such action is taken it is reasonably foreseeable that such action
will substantially diminish or otherwise eliminate the benefits intended to be afforded by the Rights. 
  

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 11.15 Adjustment of Rights Associated with Common Shares. Notwithstanding anything
contained in this Agreement to the contrary, in the event that the Company shall at any time after the Rights Dividend Declaration Date and prior to the Distribution Date (i) declare or pay any dividend on the outstanding Common Shares payable
in Common Shares, (ii) effect a subdivision or consolidation of the outstanding Common Shares (by reclassification or otherwise than by the payment of dividends payable in Common Shares), or (iii) combine the outstanding Common Shares into
a greater or lesser number of Common Shares, then in any such case, the number of Rights associated with each Common Share then outstanding, or issued or delivered thereafter but prior to the Distribution Date or in accordance with Section 22
shall be proportionately adjusted so that the number of Rights thereafter associated with each Common Share following any such event shall equal the result obtained by multiplying the number of Rights associated with each Common Share immediately
prior to such event by a fraction, the numerator of which shall be the total number of Common Shares outstanding immediately prior to the occurrence of the event and the denominator of which shall be the total number of Common Shares outstanding
immediately following the occurrence of such event. The adjustment provided for in this Section 11.15 shall be made successively whenever a dividend referred to in this Section 11.15 is declared or paid or a subdivision, combination or
consolidation referred to in this Section 11.15 is effected. 
 11.16 Company Agreements. The Company covenants
and agrees that it shall not, at any time after the Distribution Date engage in a Transaction if (x) at the time of or immediately after such Transaction 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 (y) prior to, simultaneously with or immediately after such Transaction, the stockholders of the Person who
constitutes, or would constitute, the “Principal Party” for purposes of Section 13.1 hereof shall have received a distribution of Rights previously owned by such Person or any of its Affiliates and Associates. 
 SECTION 12. CERTIFICATE OF ADJUSTED PURCHASE PRICE OR NUMBER OF SHARES. Whenever an adjustment is made or any event affecting the Rights or their
exercisability (including without limitation an event which causes Rights to become null and void) occurs as provided in Section 11 or Section 13, the Company shall (a) promptly prepare a certificate setting forth such adjustment or
describing such event, and a brief, reasonably detailed statement of the facts and computations accounting for such adjustment, (b) promptly 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 a brief summary thereof to each holder of a Right Certificate in accordance with Section 25. The Rights Agent shall be fully protected in relying on any such certificate and on any adjustment or
statement therein contained and shall have no duty or liability with respect to and shall not be deemed to have knowledge of any such adjustment or any such event unless and until it shall have received such certificate. 
  

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 SECTION 13. CONSOLIDATION, MERGER OR SALE OR TRANSFER OF ASSETS OR EARNING POWER. 
 13.1 Certain Transactions. In the event that, from and after the first occurrence of a Trigger Event, directly or indirectly, the
Company consummates a Transaction, then, and in each such case, proper provision shall be made so that 
 (i) each holder of a
Right (other than Rights which have become void pursuant to Section 11.1.2) shall thereafter have the right to receive, upon the exercise thereof at a price per Right equal to the then-current Purchase Price multiplied by the number of
two-hundredths of a Preferred Share for which a Right was exercisable immediately prior to the first occurrence of a Trigger Event (as subsequently adjusted pursuant to Sections 11.1.1, 11.2, 11.3, 11.8, 11.9 and 11.12), in accordance with the terms
of this Agreement and in lieu of Preferred Shares or Common Shares, such number of validly authorized and issued, fully paid, non-assessable and freely tradable Common Shares of the Principal Party (as such term is hereinafter defined) not subject
to any liens, encumbrances, rights of first refusal or other adverse claims, as shall be equal to the result obtained by (x) multiplying the then-current Purchase Price by the number of two-hundredths of a Preferred Share for which a Right was
exercisable immediately prior to the first occurrence of a Trigger Event (as subsequently adjusted pursuant to Sections 11.1.1, 11.2, 11.3, 11.8, 11.9 and 11.12) and (y) dividing that product by 50% of the then Current Per Share Market Price of
the Common Shares of such Principal Party (determined pursuant to Section 11.4) on the date of consummation of the Transaction; provided, that the price per Right so payable and the number of Common Shares of such Principal Party so receivable
upon exercise of a Right shall thereafter be subject to further adjustment as appropriate in accordance with Section 11.6 to reflect any events covered thereby occurring in respect of the Common Shares of such Principal Party after the
occurrence of such consolidation, merger, sale or transfer; 
 (ii) 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; 
 (iii) the term “Company” shall thereafter be deemed to refer to such Principal Party; and 
 (iv) such Principal Party shall take such steps (including, but not limited to, the authorization and reservation of a sufficient number of its Common Shares in accordance with Section 9) 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 its Common Shares thereafter deliverable upon the exercise of the Rights; provided that, upon the
subsequent occurrence of any consolidation, merger, sale or transfer of assets or other extraordinary transaction in respect of such Principal Party, each holder of a Right shall thereupon be entitled to receive, upon exercise of a Right and payment
of the Purchase Price as provided in this Section 13.1, such cash, shares, rights, warrants and other property which such holder would have been entitled to receive had such holder, at the time of such transaction, owned the Common Shares of
the Principal Party receivable upon the exercise of a Right pursuant to this Section 13.1, and such Principal Party shall take such steps (including, but not limited to, reservation of shares of stock) as may be necessary to permit the
subsequent exercise of the Rights in accordance with the terms hereof for such cash, shares, rights, warrants and other property. 
  

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 13.2 Actions Prior to Transactions. The Company shall not consummate any
Transaction unless prior thereto the Company and such Principal Party shall have executed and delivered to the Rights Agent a supplemental agreement confirming that the requirements of this Sections 13.1 and 13.2 shall promptly be performed in
accordance with their terms and that such Transaction shall not result in a default by the Principal Party under this Agreement as the same shall have been assumed by the Principal Party pursuant to this Section 13.1 and Section 13.2 and
providing that, as soon as practicable after executing such agreement pursuant to this Section 13, the Principal Party, at its own expense, shall 
 (i) prepare and file a registration statement under the Securities Act, if necessary, with respect to the Rights and the securities purchasable upon exercise of the Rights on an appropriate form, use its best efforts
to cause such registration statement to become effective as soon as practicable after such filing and use its best efforts to cause such registration statement to remain effective (with a prospectus at all times meeting the requirements of the
Securities Act) until the Expiration Date and similarly comply with applicable state securities laws; 
 (ii) use its best
efforts, if the Common Shares of the Principal Party shall be listed or admitted to trading on the New York Stock Exchange, The NASDAQ Stock Market or on another national securities exchange, to list or admit to trading (or continue the listing of)
the Rights and the securities purchasable upon exercise of the Rights on the New York Stock Exchange, The NASDAQ Stock Market or such securities exchange, or, if the Common Shares of the Principal Party shall not be listed or admitted to trading on
the New York Stock Exchange, The NASDAQ Stock Market or a national securities exchange, to cause the Rights and the securities receivable upon exercise of the Rights to be authorized for quotation on an automated quotation system or such other
system then in use; 
 (iii) deliver to holders of the Rights historical financial statements for the Principal Party which
comply in all respects with the requirements for registration on Form 10 (or any successor form) under the Exchange Act; and 
 (iv) obtain waivers of any rights of first refusal or preemptive rights in respect of the Common Shares of the Principal Party subject to purchase upon exercise of outstanding Rights. 
 In case the Principal Party has provision in any of its authorized securities or in its charter or bylaws or other instrument governing
its corporate affairs, which provision would have the effect of (i) causing such Principal Party to issue (other than to holders of Rights pursuant to this Section 13), in connection with, or as a consequence of, the consummation of a
transaction referred to in this Section 13, Common Shares or Common Stock Equivalents of such Principal Party at less than the then-current market price per share thereof (determined pursuant to Section 11.4) or securities exercisable for,
or convertible into, 

  

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Common Shares or Common Stock Equivalents of such Principal Party at less than such then-current market price (other than to holders of Rights pursuant to
this Section 13), or (ii) providing for any special payment, taxes or similar provision in connection with the issuance of the Common Shares of such Principal Party pursuant to the provisions of this Section 13, then, in such event,
the Company hereby agrees with each holder of Rights that it shall not consummate any such transaction unless prior thereto the Company and such Principal Party shall have duly executed and delivered to the Rights Agent a supplemental agreement
providing that the provision in question of such Principal Party shall have been cancelled, waived or amended, or that the authorized securities shall be redeemed, so that the applicable provision will have no effect in connection with, or as a
consequence of, the consummation of the proposed transaction. 
 The Company covenants and agrees that it shall not, at any
time after the Trigger Event, enter into any Transaction if (i) at the time of or immediately after such Transaction there are any rights, warrants or other instruments or securities outstanding or agreements in effect which would substantially
diminish or otherwise eliminate the benefits intended to be afforded by the Rights, (ii) prior to, simultaneously with or immediately after such Transaction, the stockholders of the Person who constitutes, or would constitute, the Principal
Party for purposes of Section 13.3 shall have received a distribution of Rights previously owned by such Person or any of its Affiliates or Associates or (iii) the form or nature of organization of the Principal Party would preclude or
limit the exercisability of the Rights. The provisions of this Section 13 shall similarly apply to successive Transactions. 
 13.3 Principal Party. “Principal Party” shall mean: 
 (i) in the case of any Transaction:
(i) the Person that is the issuer of the securities into which the Common Shares are converted in such Transaction, or, if there is more than one such issuer, the issuer the Common Shares of which have the greatest aggregate market value of
shares outstanding, or (ii) if no securities are so issued, (x) the Person that is the other party to the merger, if such Person survives said merger, or, if there is more than one such Person, the Person the Common Shares of which have
the greatest aggregate market value of shares outstanding or (y) if the Person that is the other party to the merger does not survive the merger, the Person that does survive the merger (including the Company if it survives) or (z) the
Person resulting from the consolidation; and 
 (ii) in the case of any Transaction, the Person that is the party receiving
the greatest 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 receives the same portion of the assets or earning power so transferred or if the
Person receiving the greatest portion of the assets or earning power cannot be determined, whichever of such Persons is the issuer of Common Shares having the greatest aggregate market value of shares outstanding; provided, however, that in any
Transaction, if the Common Shares of such Person are not at such time or have not been continuously over the preceding twelve month period registered under Section 12 of the Exchange Act, then (1) if such Person is a direct or indirect
Subsidiary of another Person the Common Shares of which are and have been so registered, the term 

  

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“Principal Party” shall refer to such other Person, or (2) if such Person is a Subsidiary, directly or indirectly, of more than one Person,
the Common Shares of all of which are and have been so registered, the term “Principal Party” shall refer to whichever of such Persons is the issuer of Common Shares having the greatest aggregate market value of shares outstanding, or
(3) if such Person is owned, directly or indirectly, by a joint venture formed by two or more Persons that are not owned, directly or indirectly, by the same Person, the rules set forth in clauses (1) and (2) above shall apply to each
of the owners having an interest in the venture as if the Person owned by the joint venture was a Subsidiary of both or all of such joint venturers, and the Principal Party in each such case shall bear the obligations set forth in this
Section 13 in the same ratio as its interest in such Person bears to the total of such interests. 
 13.4 Approved
Acquisitions. Notwithstanding anything contained herein to the contrary, in the event of any merger or other acquisition transaction involving the Company pursuant to a merger or other acquisition agreement between the Company and any Person (or
one or more of such Person’s Affiliates or Associates) which agreement has been approved by the Board of Directors prior to any Person becoming an Acquiring Person, this Agreement and the rights of holders of Rights hereunder shall be
terminated in accordance with Section 7.1. 
 SECTION 14. FRACTIONAL RIGHTS AND FRACTIONAL SHARES. 
 14.1 Cash in Lieu of Fractional Rights. The Company shall not be required to issue fractions of Rights or to distribute Right
Certificates which represent fractional Rights (except prior to the Distribution Date in accordance with Section 11.15). In lieu of such fractional Rights, there shall be paid to the registered holders of the Right Certificates with regard to
which such fractional Rights would otherwise be issuable an amount in cash equal to the same fraction of the current market value of a whole Right. For the purposes of this Section 14.1, 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 each day shall be the last sale price, regular way, or, in case no such sale
takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the New York
Stock Exchange, The NASDAQ Stock Market, or, if the Rights are not listed or admitted to trading on the New York Stock Exchange or The NASDAQ Stock Market, as reported in the principal consolidated transaction reporting system with respect to
securities listed on the principal national securities exchange on which the Rights are listed or admitted to trading, or, if the Rights are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so
quoted, the average of the high bid and low asked prices in the over-the-counter market, as reported by an automated quotation system or such other system then in use, or, if on any such date the Rights are not quoted by any such organization, the
average of the closing bid and asked prices as furnished by a professional market maker making a market in the Rights selected by the Board of Directors. If on any such date no such market maker is making a market in the Rights, the current market
value of the Rights on such date shall be the fair value of the Rights as determined in good faith by the Board of Directors, or, if at the time of such determination there is an Acquiring Person, by a nationally recognized investment banking firm
selected by the Board of Directors, which shall have the duty to make such determination in a reasonable and objective manner, which determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all
purposes. 
  

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 14.2 Cash in Lieu of Fractional Preferred Shares. The Company shall not be
required to issue fractions of Preferred Shares (other than fractions which are integral multiples of one two-hundredth of a Preferred Share) upon exercise or exchange of the Rights or to distribute certificates which represent fractional Preferred
Shares (other than fractions which are integral multiples of one two-hundredth of a Preferred Share). Interests in fractions of Preferred Shares in integral multiples of one two-hundredth of a Preferred Share may, at the election of the Company, be
represented 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 two-hundredth of a Preferred
Share, the Company shall pay to the registered holders of Right Certificates at the time such Rights are exercised or exchanged as herein provided an amount in cash equal to the same fraction of the Current Per Share Market Price of one Preferred
Share (as determined in accordance with Section 11.4) for the Trading Day immediately prior to the date of such exercise or exchange. 
 14.3 Cash in Lieu of Fractional Common Shares. The Company shall not be required to issue fractions of Common Shares or to distribute certificates which represent fractional Common Shares upon the exercise or
exchange of Rights. 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 (as determined in accordance with Section 14.1) for the Trading Day immediately prior to the date of such exercise or exchange. 
 14.4 Waiver of Right to Receive Fractional Rights or Shares. The holder of a Right by the acceptance of the Rights expressly waives
his right to receive any fractional Rights or any fractional shares upon exercise or exchange of a Right, except as permitted by this Section 14. Whenever a payment for fractional Rights or fractional shares is to be made by the Rights Agent,
the Company shall (i) promptly prepare and deliver to the Rights Agent a certificate setting forth in reasonable detail the facts related to such payments and the prices and/or formulas utilized in calculating such payments, and
(ii) provide sufficient monies to the Rights Agent in the form of fully collected funds to make such payments. The Rights Agent shall be fully protected in relying upon such a certificate and shall have no duty with respect to, and shall not be
deemed to have knowledge of any payment for fractional Rights or fractional shares under any Section of this Agreement relating to the payment of fractional Rights or fractional shares unless and until the Rights Agent shall have received such a
certificate and sufficient monies. 
  

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 SECTION 15. RIGHTS OF ACTION. All rights of action in respect of this Agreement, except the rights
of action given to the Rights Agent hereunder, are vested in the respective registered holders of the Right Certificates (and, prior to the Distribution Date, the registered holders of the Common Shares); and any registered holder of any Right
Certificate (or, prior to the Distribution Date, of the Common Shares), without the consent of the Rights Agent or of the holder of any other Right Certificate (or, prior to the Distribution Date, of the Common Shares), may, in his own behalf and
for his own benefit, enforce this Agreement, and may institute and maintain any suit, action or proceeding against the Company to enforce this Agreement, or otherwise enforce or act in respect of his right to exercise the Rights represented 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 would not have an
adequate remedy at law for any breach of this Agreement and shall be entitled to specific performance of the obligations under, and injunctive relief against actual or threatened violations of, the obligations of any Person (including, without
limitation, the Company) subject to this Agreement. 
 Notwithstanding anything in this Agreement to the contrary, neither the
Company nor the Rights Agent shall have any liability to any holder of a Right or other Person as a result of its inability to perform any of its obligations under this Agreement by reason of any preliminary or permanent injunction or other order,
judgment, decree or ruling (whether interlocutory or final) issued by a court or by a governmental, regulatory, self-regulatory or administrative agency or commission, or any statute, rule, regulation or executive order promulgated or enacted by any
governmental authority, prohibiting or otherwise restraining performance of such obligation; provided, however, that the Company must use all reasonable efforts to have any such injunction, order, judgment, decree or ruling lifted or otherwise
overturned as soon as possible. 
 SECTION 16. AGREEMENT OF RIGHT HOLDERS. Every holder of a Right by accepting the same consents and
agrees with the Company and the Rights Agent and with every other holder of a Right that: 
 (i) prior to the Distribution
Date, the Rights will be transferable only in connection with the transfer of the Common Shares; 
 (ii) as of and after the
Distribution Date, the Right Certificates are transferable only on the registry books of the Rights Agent if surrendered at the office of the Rights Agent designated for such purpose, duly endorsed or accompanied by a proper instrument of transfer
with all required certifications properly completed and duly executed; and 
 (iii) 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) is registered as the absolute owner thereof and of the Rights represented hereby (notwithstanding any notations
of ownership or writing on the Right Certificates or the associated Common Shares certificate made by anyone other than the Company or the Rights Agent) for all purposes whatsoever, and neither the Company nor the Rights Agent shall be affected by
any notice to the contrary. 
  

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 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 24), or to receive
dividends or subscription rights, or otherwise, until the Right or Rights represented by such Right Certificate shall have been exercised in accordance with the provisions hereof. 
 SECTION 18. CONCERNING THE RIGHTS AGENT. The Company agrees to pay to the Rights Agent reasonable compensation for all services rendered by it
hereunder in accordance with the fee schedule attached hereto as Exhibit D and, from time to time, on demand of the Rights Agent, its reasonable expenses and counsel fees and other disbursements incurred in the preparation, execution, delivery,
administration and amendment 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, damage, judgment, fine,
penalty, claim, demand, settlement, cost, or expense (including, without limitation, the reasonable fees and expenses of legal counsel), incurred without gross negligence, bad faith or willful misconduct on the part of the Rights Agent (which gross
negligence, bad faith, or willful misconduct must be determined by a final, nonappealable judgment of a court of competent jurisdiction) for any action taken, suffered, or omitted by the Rights Agent in connection with the acceptance,
administration, exercise and performance of its duties under this Agreement, including the costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly. The costs and expenses incurred by the Rights Agent
in enforcing this right of indemnification shall be paid by the Company unless it is finally determined by a court of competent jurisdiction that the Rights Agent is not entitled to indemnification due to the Rights Agent’s gross negligence,
bad faith or willful misconduct, in which event, the Rights Agent shall repay all such costs and expenses. The indemnity and compensation provided herein shall survive the termination of this Agreement, the termination and the expiration of the
Rights and the resignation or removal of the Rights Agent. Anything to the contrary notwithstanding, in no event shall the Rights Agent be liable for special, punitive, indirect, consequential or incidental 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. Any liability of the Rights Agent under this Agreement will be limited to the amount of fees paid by the Company to the
Rights Agent pursuant to this Agreement. The provisions of this Section 18 and Section 20 below shall survive the termination of this Agreement, the exercise or expiration of the Rights and the resignation, replacement or removal of the
Rights Agent. 
 The Rights Agent may conclusively rely upon and 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 acceptance and administration of this Agreement and the exercise and performance of its duties hereunder, in reliance upon any Right Certificate or certificate for the Preferred 

  

 32 








 
Shares or the Common Shares or for other securities of the Company, instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter,
notice, instruction, 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. 
 SECTION 19. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF RIGHTS AGENT. Any Person into which the Rights Agent or any successor Rights Agent may be
merged or with which it may be consolidated, or any Person resulting from any merger or consolidation to which the Rights Agent or any successor Rights Agent shall be a party, or any Person succeeding to the shareholder services 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 Person 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. 
 SECTION 20. DUTIES OF RIGHTS AGENT. The Rights Agent undertakes to perform only the
duties and obligations expressly imposed by this Agreement (and no implied duties or obligations) upon the terms and conditions set forth in this Section 20, by all of which the Company and the holders of Right Certificates, by their acceptance
thereof, shall be bound. 
 20.1 Legal Counsel. The Rights Agent may consult with legal counsel selected by it (who may
be legal counsel for the Company or an employee of the Rights Agent), and the written advice or opinion of such counsel shall be full and complete authorization and protection to the Rights Agent, and the Rights Agent shall incur no liability for or
in respect of any action taken, suffered, or omitted by it in accordance with such advice or opinion. 
  

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 20.2 Certificates as to Facts or Matters. Whenever in the performance of its
duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter (including without limitation, the identity of an Acquiring Person and the determination of the current per share market price of any security)
be proved or established by the Company prior to taking, suffering or omitting to take any action hereunder, such fact or matter (unless other representation 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 of Directors, the Chief Executive Officer, the Chief Financial Officer, any Vice President, the Treasurer, the Secretary or any Assistant Treasurer or Assistant
Secretary of the Company and delivered to the Rights Agent; and such certificate shall be full and complete authorization and protection to the Rights Agent, and the Rights Agent shall incur no liability for or in respect of any action taken,
suffered or omitted by it under the provisions of this Agreement in reliance upon such certificate. 
 20.3 Standard of
Care. The Rights Agent shall be liable hereunder to the Company or any other Person only for its own gross negligence, bad faith or willful misconduct as finally determined by a court of competent jurisdiction. 
 20.4 Reliance on Agreement and Right Certificates. 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 as to 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. 
 20.5 No Responsibility as to Certain Matters. The Rights Agent shall not have any liability for, nor 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 liable or 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 liable or responsible for any change in the
exercisability of the Rights (including the Rights becoming null and void pursuant to Section 11.1.2) or any adjustment required under the provisions of Section 3, Section 11, Section 13, Section 23 or Section 27 or
responsible for the manner, method or amount of any such adjustment or the ascertaining of the existence of facts that would require any such adjustment (except with respect to the exercise of Rights represented by Right Certificates after actual
notice of any such change or adjustment); 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 or other securities to be issued pursuant to this Agreement
or any Right Certificate or as to whether any Preferred Shares will, when so issued, be validly authorized and issued, fully paid and nonassessable. 
 20.6 Further Assurance by Company. 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. 
  


 34 








 20.7 Authorized Company Officers. 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 of Directors, the Chief Executive Officer, the Chief Financial Officer, any Vice President, the Treasurer, the
Secretary or any Assistant Treasurer or Assistant Secretary of the Company, and to apply to such officers for advice or instructions in connection with its duties under this Agreement, and such advice or instructions shall be full authorization and
protection to the Rights Agent and the Rights Agent shall incur no liability for or the respect of any action taken or suffered to be taken or omitted by it in accordance with the advice or instructions of any such officer or for any delay in acting
while waiting for those instructions. The Rights Agent shall be fully authorized and protected in relying upon the most recent instructions received by any such officer. 
 20.8 Freedom to Trade in Company Securities. The Rights Agent and any stockholder, Affiliate, director, officer or employee of the
Rights Agent may buy, sell or deal in any of the Rights or other securities of the Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company or otherwise act as
fully and freely as though it were not Rights Agent under this Agreement. Nothing herein shall preclude the Rights Agent (or any such stockholder, affiliate, director, officer or employee) from acting in any other capacity for the Company or for any
other Person. 
 20.9 Reliance on Attorneys and Agents. The Rights Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself (through its directors, officers and employees) or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, omission,
default, neglect or misconduct of any such attorneys or agents or for any loss to the Company, any holder of Rights or any other Person resulting from any such act, omission, default, neglect or misconduct, absent gross negligence or willful
misconduct, in the selection and continued employment thereof (which gross negligence or willful misconduct must be determined by a final judgment of a court of competent jurisdiction). 
 20.10 Incomplete Certificate. If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer,
the certificate contained in the form of assignment or the form of election to purchase set forth on the reverse thereof, as the case may be, has not been properly completed to certify the holder is not an Acquiring Person (or an Affiliate or
Associate thereof), the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company. 
 20.11 Rights Holders List. At any time and from time to time after the Distribution Date, upon the written request of the Company,
the Rights Agent shall promptly deliver to the Company a list, as of the most recent practicable date (or as of such earlier date as may be specified by the Company), of the holders of record of Rights. 
 20.12 Use of Funds. No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder or in the exercise of its rights if it believes that repayment of such funds or adequate indemnification against such risk or liability is not assured to it. 

 

 35 








 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 thirty (30) days’ notice in writing mailed to the Company and to each transfer agent of the Common Shares and/or Preferred Shares known to the Rights Agent, as applicable, by
registered or certified mail. Following the Distribution Date, the Company shall promptly notify the holders of the Right Certificates by first-class mail of any such resignation. The Company may remove the Rights Agent or any successor Rights Agent
upon thirty (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 and/or Preferred Shares, as applicable, 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 resigning, removed, or incapacitated Rights Agent shall remit to the Company, or to
any successor Rights Agent designated by the Company, all books, records, funds, certificates or other documents or instruments of any kind then in its possession which were acquired by such resigning, removed or incapacitated Rights Agent in
connection with its services as Rights Agent hereunder, and shall thereafter be discharged from all duties and obligations hereunder. Following notice of such removal, resignation or incapacity, the Company shall appoint a successor to such Rights
Agent. If the Company shall fail to make such appointment within a period of thirty (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), then the registered holder of any Right Certificate may apply to any court of competent jurisdiction for
the appointment of a new Rights Agent. Any successor Rights Agent, whether appointed by the Company or by such a court, shall be a Person, or an Affiliate of such a Person, organized and doing business under the laws of the United States or any
state of the United States in good standing, having an office in the State of New York, the State of California or the State of Delaware, which is authorized under such laws to exercise stockholder services and is subject to supervision or
examination by Federal or state authority and which has at the time of its appointment as Rights Agent a combined capital and surplus of at least $50 million. After appointment, the successor Rights Agent shall be vested with the same powers,
rights, duties and responsibilities as if it had been originally named as Rights Agent without further act or deed; but the predecessor Rights Agent shall deliver and transfer to the successor Rights Agent any property at the time held by it
hereunder, and execute and deliver any further assurance, conveyance, act or deed necessary for the purpose. Not later than the effective date of any such appointment the Company shall file notice thereof in writing with the predecessor Rights Agent
and each transfer agent of the Common Shares and/or Preferred Shares, as applicable, and, following the Distribution Date, 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 representing 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 

  

 36 








 
Certificates made in accordance with the provisions of this Agreement. In addition, in connection with the issuance or sale of Common Shares following the
Distribution Date and prior to the Expiration Date, the Company shall, with respect to Common Shares so issued or sold pursuant to the exercise of stock options or under any employee plan or arrangement, granted or awarded, or upon exercise,
conversion or exchange of securities (other than Common Shares) hereinafter issued by the Company, in each case existing prior to the Distribution Date, issue Right Certificates representing the appropriate number of Rights in connection with such
issuance or sale; provided, however, that (i) no such Right Certificate shall be issued if, and to the extent that, the Company shall be advised by counsel that such issuance would create a significant risk of material adverse tax consequences
to the Company or the Person to whom such Right Certificate would be issued, and (ii) no such Right Certificate shall be issued if, and to the extent that, appropriate adjustment shall otherwise have been made in lieu of the issuance thereof.

 SECTION 23. REDEMPTION. 
 23.1 Right to Redeem. The Company may, at its option, at any time prior to the earlier of the Trigger Event and the Expiration Date, redeem all but not less than all of the then outstanding Rights at a
redemption price of $.001 per Right, appropriately adjusted to reflect any stock split, stock dividend, recapitalization or similar transaction occurring after the Rights Dividend Declaration Date (such redemption price being hereinafter referred to
as the “Redemption Price”), and the Company may, at its option, pay the Redemption Price in Common Shares (based on the “Current Per Share Market Price” determined pursuant to Section 11.4 of the Common Shares at the
time of redemption), cash or any other form of consideration deemed appropriate by the Board of Directors. The redemption of the Rights by the Company may be made effective at such time, on such basis and subject to such conditions as the Board of
Directors in its sole discretion may establish. In addition, the Company may, at its option, at any time after a Trigger Event and after the expiration of any period during which the holder of Rights may exercise the rights under Section 11.1.2
but prior to any Transaction, redeem all but not less than all of the then outstanding Rights at the Redemption Price (i) in connection with any Transaction in which all holders of Common Shares are treated alike and not involving (other than
as a holder of Common Shares being treated like all other such holders) an Interested Stockholder or a Transaction Person or (ii)(A) if and for so long as the Acquiring Person is not thereafter the Beneficial Owner of 15% or more of the then
outstanding Common Shares; provided, however, that if such Acquiring Person is an Existing Holder, such Acquiring Person may thereafter be the Beneficial Owner of the number of Common Shares such Acquiring Person beneficially owned as of the date of
this Agreement, and (B) at the time of redemption no other Person is an Acquiring Person. 
 23.2 Redemption
Procedures. Immediately upon the action of the Board of Directors ordering the redemption of the Rights (or at such later time as the Board of Directors may establish for the effectiveness of such redemption), 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 for each Right so held. The Company shall promptly give the Rights Agent prompt
written notice thereof and public notice of such redemption; provided, however, that the failure to give, or any defect in, any such notice shall not affect the validity of such redemption. The Company shall promptly 

  

 37 








 
give, or through written direction to the Rights Agent cause the Rights Agent to give, notice of such redemption to the holders of the then outstanding
Rights by mailing such notice to all such holders at their last addresses as they appear upon the registry books of the 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 in the manner herein provided shall be deemed given, whether or not the holder receives the notice. Each such notice of redemption shall state the method by which the payment of the Redemption Price will be made. Neither the Company
nor any of its Affiliates or Associates may redeem, acquire or purchase for value any Rights at any time in any manner other than that specifically set forth in this Section 23 or in Section 27, and other than in connection with the
purchase, acquisition or redemption of Common Shares prior to the Distribution Date. 
 SECTION 24. NOTICE OF CERTAIN EVENTS. In case
the Company shall propose at any time after the earlier of the Shares Acquisition Date and the Distribution Date (a) to pay any dividend payable in stock of any class to the holders of Preferred Shares or to make any other distribution to the
holders of Preferred Shares, or (b) to offer to the holders of 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, or
(c) to effect any reclassification of its Preferred Shares (other than a reclassification involving only the subdivision of outstanding Preferred Shares), or (d) 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 (other than pursuant to a merger or other acquisition agreement of the type described in Section 1.3(ii)(A)(z)), or (e) to effect the liquidation, dissolution or winding up of the Company, or (f) 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 the Rights Agent and to each holder of a Right Certificate, in accordance with Section 25, a notice of such proposed action, which shall specify the record date for the purposes of such stock dividend, 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 Preferred Shares and/or Common 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 (a) or (b) above at least ten (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 ten (10) days prior to the date of the taking of such proposed action or the date of participation therein by the holders of the Preferred Shares and/or Common Shares,
whichever shall be the earlier. 
 In case any event set forth in Section 11.1.2 or Section 13 shall occur, then, in any such case,
(i) the Company shall as soon as practicable thereafter give to the Rights Agent and to each holder of a Right Certificate, in accordance with Section 25, a notice of the occurrence of such event, which notice shall describe the event and
the consequences of the event to holders of Rights under Section 11.1.2 and Section 13, and (ii) all references in this Section 24 to Preferred Shares shall be deemed thereafter to refer to Common Shares and/or, if appropriate,
other securities. 
  

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 Notwithstanding anything in this Agreement to the contrary, prior to the Distribution Date a filing by
the Company with the Securities and Exchange Commission shall constitute sufficient notice to the holders of securities of the Company, including the Rights, for purposes of this Agreement and no other notice need be given. 
 SECTION 25. 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: 
  

					
		  	 BioMarin Pharmaceutical Inc.
 105 Digital
Drive
 Novato, California 94949
 Attention:
Secretary
	  	

 Subject to the provisions of Section 21 and Section 24, 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: 
  

					
		  	 Mellon Investor Services LLC
 235 Montgomery Street, 23rd
Floor
 San Francisco, California 94104
 Attention: Lisa Brenten

	  	
			
		  	 with a copy to:
	  	
			
		  	 Mellon Investor Services LLC
 Newport Office Center VII

 480 Washington Boulevard
 Jersey City, New Jersey
07310
 Attention: General Counsel
	  	

 Notices or demands authorized by this Agreement to be given or made by the Company or the Rights
Agent to the holder of any Right Certificate (or, prior to the Distribution Date, to the holder of any certificate representing Common Shares) 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 26. SUPPLEMENTS AND AMENDMENTS; INTEGRATION.
For so long as the Rights are redeemable, the Company may in its sole and absolute discretion, and the Rights Agent shall, if the Company so directs, supplement or amend any provision of this Agreement in any respect without the approval of any
holders of Rights or Common Shares. From and after the time that the Rights are no longer redeemable, the Company may, and the Rights Agent shall, if the Company so directs, from time to time supplement or amend this Agreement without the approval
of any holders of Rights (i) to cure any ambiguity or to correct or supplement any provision contained herein which may be defective or inconsistent 

  

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with any other provisions herein, or (ii) to make any other changes or provisions in regard to matters or questions arising hereunder which the Company
may deem necessary or desirable, including but not limited to extending the Final Expiration Date; provided, however, that no such supplement or amendment shall adversely affect the interests of the holders of Rights as such (other than an Acquiring
Person or an Affiliate or Associate of an Acquiring Person), and no such supplement or amendment may cause the Rights again to become redeemable or cause this Agreement again to become amendable other than in accordance with this sentence; provided
further, that the right of the Board of Directors to extend the Distribution Date shall not require any amendment or supplement hereunder. Upon the delivery of a certificate from an appropriate officer of the Company which states that the proposed
supplement or amendment is in compliance with the terms of this Section 26, and provided such supplement or amendment does not change, modify or increase the Rights Agent’s duties, liabilities or obligations hereunder or change, modify or
decrease the Rights Agents rights and immunities hereunder, the Rights Agent shall execute such supplement or amendment; provided, however, that a supplement or amendment complying with this sentence shall become effective immediately upon execution
by the Company, whether or not also executed by the Rights Agent., provided that the Company shall promptly notify the Rights Agent of any such supplement or amendment (including using commercially reasonable efforts to notify the Rights Agent of
such supplement or amendment prior to the execution thereof by the Company) and provide the Rights Agent with a copy of such supplement or amendment. Without limiting the foregoing, at any time prior to such time as any Person becomes an Acquiring
Person, the Company and the Rights Agent may amend this Agreement to lower the thresholds set forth in Sections 1.1 and 3.1 to not less than the greater of (i) any percentage greater than the largest percentage of the outstanding Common Shares
then known by the Company to be beneficially owned by any Person (other than an Exempt Person) and (ii) 10%. This Agreement constitutes the entire understanding and agreement among the parties hereto with respect to the subject matter hereof,
and there are no agreements, understandings, restrictions, representations or warranties among the parties hereto with respect to the subject matter hereof other than those set forth herein or herein provided for. 
 SECTION 27. EXCHANGE. 
 27.1 Exchange of Common Shares for Rights. The Company may, at its option, at any time after the occurrence of a Trigger Event, exchange Common Shares for 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 11.1.2) 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
Rights Dividend Declaration Date (such amount per Right being hereinafter referred to as the “Exchange Consideration”). Notwithstanding the foregoing, the Company shall not be empowered to effect such exchange at any time after any
Acquiring Person shall have become the Beneficial Owner of 50% or more of the Common Shares then outstanding. From and after the occurrence of an event specified in Section 13.1, any Rights that theretofore have not been exchanged pursuant to
this Section 27.1 shall thereafter be exercisable only in accordance with Section 13 and may not be exchanged pursuant to this Section 27.1. The exchange of the Rights by the Company 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. Prior to effecting an exchange pursuant to this Section 27.1, the 

  

 40 








 
Board of Directors may direct the Company to enter into a Trust Agreement in such form and with such terms as the Board of Directors shall then approve (the
“Trust Agreement”). If the Board of Directors so directs, the Company shall enter into the Trust Agreement and shall issue to the trust created by such agreement (the “Trust”) all of the Common Shares issuable
pursuant to the exchange, and all stockholders entitled to receive shares pursuant to the exchange shall be entitled to receive such shares (and any dividends or distributions made thereon after the date on which such shares are deposited in the
Trust) only from the Trust and solely upon compliance with the relevant terms and provisions of the Trust Agreement. 
 27.2
Exchange Procedures. Immediately upon the action of the Board of Directors ordering the exchange for any Rights pursuant to Section 27.1 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 the Exchange Consideration. The Company shall promptly give written notice to the Rights Agent and public notice of any such exchange; provided, however, that the
failure to give, or any defect in, such notice shall not affect the validity of such exchange. The Company promptly shall mail a notice of any such exchange to all of the holders of such Rights at their last addresses as they appear upon the
registry books of the Rights Agent. Any notice which is mailed in the manner herein provided shall be deemed given, whether or not the holder receives the notice. Each such notice of exchange shall state the method by which the exchange of the
Common Shares for Rights will be effected and, in the event of any partial exchange, the number of Rights which will be exchanged. Any partial exchange shall be effected pro rata based on the number of Rights (other than the Rights that have become
null and void pursuant to the provisions of Section 11.1.2) held by each holder of Rights. 
 27.3 Insufficient
Shares. The Company may at its option substitute, and, in the event that there shall not be sufficient Common Shares issued but not outstanding or authorized but unissued to permit an exchange of Rights for Common Shares as contemplated in
accordance with this Section 27, the Company shall substitute to the extent of such insufficiency, for each Common Share that would otherwise be issuable upon exchange of a Right, a number of Preferred Shares or fraction thereof (or Equivalent
Preferred Stock, as such term is defined in Section 11.2) such that the Current Per Share Market Price (determined pursuant to Section 11.4) of one Preferred Share (or equivalent preferred share) multiplied by such number or fraction is
equal to the Current Per Share Market Price of one Common Share (determined pursuant to Section 11.4) as of the date of such exchange. 
 SECTION 28. 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 29. BENEFICIARIES 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). 
  

 41 








 SECTION 30. DETERMINATION AND ACTIONS BY THE BOARD OF DIRECTORS. The Board of Directors shall have
the exclusive power and authority to administer this Agreement and to exercise the rights and powers specifically granted to the Board of Directors or to the Company, or as may be necessary or advisable in the administration of this Agreement,
including, without limitation, the right and power to (i) interpret the provisions of this Agreement and (ii) make all determinations deemed necessary or advisable for the administration of this Agreement (including, without limitation, a
determination to redeem or not redeem the Rights or amend this Agreement). All such actions, calculations, interpretations and determinations that are done or made by the Board of Directors in good faith shall be final, conclusive and binding on the
Company, the Rights Agent, the holders of the Rights, as such, and all other parties. The Rights Agent is entitled to always assume the Board of Directors acted in good faith and shall be fully protected and incur no liability in reliance thereon.

 SECTION 31. SEVERABILITY. If any term, provision, covenant or restriction of this Agreement is held by a court of competent
jurisdiction or other authority to be invalid, void or unenforceable, 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; provided, however, that if such excluded provision shall affect the rights, immunities, duties or obligations of the Rights Agent, the Rights Agent shall be entitled to resign immediately. 
 SECTION 32. GOVERNING LAW. This Agreement and each Right and each Rights 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; provided, however, that all provisions
regarding the rights, duties and obligations of the Rights Agent shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed entirely within such State. 
 SECTION 33. 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 34. DESCRIPTIVE
HEADING. 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. 
 SECTION 35. FORCE MAJEURE. Notwithstanding anything to the contrary contained herein, the Rights Agent shall not be liable for any delays or
failures in performance resulting from acts beyond its reasonable control including, without limitation, acts of God, terrorist acts, shortage of supply, breakdowns or malfunctions, interruptions or malfunctions of computer facilities, or loss of
data due to power failures or mechanical difficulties with information storage or retrieval systems, labor difficulties, war or civil unrest. 
  

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

			
	BioMarin Pharmaceutical Inc.
		
	By:	 	/s/ G. Eric Davis
	Name:	 	G. Eric Davis
	Title:	 	 Vice President, General Counsel

	
	 Mellon Investor Services LLC

		
	By:	 	/s/ Asa Drew
	Name:	 	Asa Drew
	Title:	 	 Assistant Vice President



  

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 Exhibit A 
 Form of 
 Certificate of Amendment 
 of 
 Certificate Of Designation, Preferences And Rights 
 of 
 Series B Junior Participating Preferred
Stock 
 of 
 BioMarin
Pharmaceutical Inc. 
  
  
 The undersigned officer of BioMarin Pharmaceutical Inc. (the “Corporation”), a corporation organized and existing under the laws of the State of
Delaware hereby certifies as follows: 
 FIRST: On June 12, 2003, pursuant to the authority conferred upon the Board of
Directors of the Corporation (the “Board of Directors”) by Article IV of the Amended and Restated Certificate of Incorporation of the Corporation (the “Certificate of Incorporation”), the Board of Directors adopted
resolutions setting forth an amendment to the Corporation’s Certificate of Designation, Preferences and Rights of Series B Junior Participating Preferred Stock (the “Series B Junior Certificate of Designation”) and declaring said
amendment to be advisable. 
 SECOND: No shares of Series B Junior Participating Preferred Stock have been issued. 

THIRD: The Series B Junior Certificate of Designation is hereby amended and restated as follows: 
 SERIES B JUNIOR PARTICIPATING PREFERRED STOCK 
 Section 1. Designation and Amount. The shares of such series shall be designated as Series B Junior Participating Preferred Stock, $.001 par value per share (the “Series B Preferred Stock”), and the number of shares
constituting the Series B Preferred Stock shall be seven-hundred fifty thousand (750,000). Such number of shares may be increased or decreased by resolution of the Board of Directors; provided, that no decrease shall reduce the number of shares of
Series B Preferred Stock to a number less than the number of shares then outstanding plus the number of shares reserved for issuance upon the exercise of outstanding options, rights or warrants or upon the conversion of any outstanding securities
issued by the Corporation convertible into Series B Preferred Stock. 
  

 A-1 








 Section 2. Dividends and Distributions. 
 (A) Subject to the prior and superior rights of the holders of any shares of any class or series of stock of this Corporation ranking prior and superior
to the Series B Preferred Stock with respect to dividends, the holders of shares of Series B Preferred Stock, in preference to the holders of Common Stock, par value $.001 per share (the “Common Stock”), of the Corporation, and of any
other stock ranking junior to the Series B Preferred Stock, shall be entitled to receive, when, as and if authorized by the Board of Directors out of funds legally available for the purpose, quarterly dividends payable in cash on the fifteenth day
of January, April, July and October of each year (each such date being referred to herein as a “Quarterly Dividend Payment Date”), commencing on the first Quarterly Dividend Payment Date after the first issuance of a share or fraction of a
share of Series B Preferred Stock, in an amount per share (rounded to the nearest cent) equal to the greater of (a) $0.01 or (b) an amount, subject to the provision for adjustment hereinafter set forth, equal to 200 times the aggregate per
share amount of all cash dividends, and 200 times the aggregate per share amount (payable in kind) of all non-cash dividends or other distributions, other than a dividend payable in shares of Common Stock or a subdivision of the outstanding shares
of Common Stock (by reclassification or otherwise), declared on the Common Stock since the immediately preceding Quarterly Dividend Payment Date or, with respect to the first Quarterly Dividend Payment Date, since the first issuance of any share or
fraction of a share of Series B Preferred Stock. In the event the Corporation shall at any time declare or pay any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision, combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser number of shares of Common Stock, then in each such case the amount to which holders of shares of
Series B Preferred Stock were entitled immediately prior to such event under clause (b) of the preceding sentence shall be adjusted by multiplying such amount by a fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. 
 (B) The Corporation shall declare a dividend or distribution on the Series B Preferred Stock as provided in paragraph (A) of this Section 2 immediately after it declares a dividend or distribution on the
Common Stock (other than a dividend payable in shares of Common Stock); provided that, in the event no dividend or distribution shall have been declared on the Common Stock during the period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $0.01 per share on the Series B Preferred Stock shall nevertheless be payable on such subsequent Quarterly Dividend Payment Date. 
 (C) Dividends shall begin to accrue and be cumulative on outstanding shares of Series B Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares, unless the date of issue of such shares is prior to the record date for the first Quarterly Dividend Payment Date, in which case dividends on such shares shall begin 

  

 A-2 








 
to accrue from the date of issue of such shares, or unless the date of issue is a Quarterly Dividend Payment Date or is a date after the record date for the
determination of holders of shares of Series B Preferred Stock entitled to receive a quarterly dividend and before such Quarterly Dividend Payment Date, in either of which events such dividends shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on the shares of Series B Preferred Stock in an amount less than the total amount of such dividends at the time accrued and payable on such shares
shall be allocated pro rata on a share-by-share basis among all such shares at the time outstanding. The Board of Directors may fix a record date for the determination of holders of shares of Series B Preferred Stock entitled to receive payment of a
dividend or distribution declared thereon, which record date shall be not more than 60 days prior to the date fixed for the payment thereof. 
 (D) In determining whether a distribution (other than upon voluntary or involuntary liquidation), by dividend, redemption or other acquisition of shares of stock of the Corporation or otherwise, is permitted under the DGCL, amounts that
would be needed, if the Corporation were to be dissolved at the time of the distribution, to satisfy the preferential rights upon dissolution of holders of the Series B Preferred Stock shall not be added to the Corporation’s total liabilities.

 Section 3. Voting Rights. The holders of shares of Series B Preferred Stock shall have the following voting rights: 
 (A) Subject to the provision for adjustment hereinafter set forth, each share of Series B Preferred Stock shall entitle the holder thereof to 200 votes
on all matters submitted to a vote of the holders of Common Stock. In the event the Corporation shall at any time declare or pay any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision, combination or
consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser number of shares of Common Stock, then in each such case the number of votes
per share to which holders of shares of Series B Preferred Stock were entitled immediately prior to such event shall be adjusted by multiplying such number by a fraction, the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. 
 (B) Except as otherwise provided herein, in the Certificate of Incorporation, or in any other Certificate of Designation, Preferences and Rights creating a series of Preferred Stock or any similar stock, the holders
of shares of Series B Preferred Stock and the holders of shares of Common Stock and any other shares of stock of the Corporation having general voting rights shall vote together as one class on all matters submitted to a vote of stockholders of the
Corporation. 
 (C) Except as set forth herein, or as otherwise provided by law, holders of Series B Preferred Stock shall have no special
voting rights and their consent shall not be required (except to the extent they are entitled to vote with holders of Common Stock as set forth herein) for taking any corporate action. 
  

 A-3 








 Section 4. Certain Restrictions. 
 (A) Whenever quarterly dividends or other dividends or distributions payable on the Series B Preferred Stock as provided in Section 2 are in
arrears, thereafter and until all accrued and unpaid dividends and distributions, whether or not declared, on shares of Series B Preferred Stock outstanding shall have been paid in full, the Corporation shall not: 
  

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

  

	 	(ii)	declare or pay dividends, or make any other distributions, on any shares of stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with
the Series B Preferred Stock, except dividends paid ratably on the Series B Preferred Stock and all such parity stock on which dividends are payable or in arrears in proportion to the total amounts to which the holders of all such shares are then
entitled; 

  

	 	(iii)	redeem or purchase or otherwise acquire for consideration shares of any stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series B
Preferred Stock, provided that the Corporation may at any time redeem, purchase or otherwise acquire shares of any such junior stock in exchange for shares of any stock of the Corporation ranking junior (both as to dividends and upon dissolution,
liquidation or winding up) to the Series B Preferred Stock; or 

  

	 	(iv)	redeem or purchase or otherwise acquire for consideration any shares of Series B Preferred Stock, or any shares of stock ranking on a parity with the Series B Preferred Stock,
except in accordance with a purchase offer made in writing or by publication (as determined by the Board of Directors) to all holders of such shares upon such terms as the Board of Directors, after consideration of the respective annual dividend
rates and other relative rights and preferences of the respective series and classes, shall determine in good faith will result in fair and equitable treatment among the respective series or classes. 

 (B) The Corporation shall not permit any subsidiary of the Corporation to purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (A) of this Section 4, purchase or otherwise acquire such shares at such time and in such manner. 
 Section 5. Reacquired Shares. Any shares of Series B Preferred Stock purchased or otherwise acquired by the Corporation in any manner whatsoever shall become authorized but unissued shares of Preferred Stock
and may be reissued as part of a new series of Preferred Stock subject to the conditions and restrictions on issuance set forth herein, in the Certificate of Incorporation, or in any other Certificate of Designation, Preferences and Rights creating
a series of Preferred Stock or any similar stock or as otherwise required by law. 
  

 A-4 








 Section 6. Liquidation, Dissolution or Winding Up. 
 (A) Upon any liquidation, dissolution or winding up of the Corporation, voluntary or otherwise no distribution shall be made (1) to the holders of
shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series B Preferred Stock unless, prior thereto, the holders of shares of Series B Preferred Stock shall have received an amount per share
(the “Series B Liquidation Preference”) equal to $10,000 per share, plus an amount equal to accrued and unpaid dividends and distributions thereon, whether or not declared, to the date of such payment, provided that the holders of shares
of Series B Preferred Stock shall be entitled to receive an aggregate amount per share, subject to the provision for adjustment hereinafter set forth, equal to 200 times the aggregate amount to be distributed per share to holders of shares of Common
Stock, or (2) to the holders of shares of stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series B Preferred Stock, except distributions made ratably on the Series B Preferred Stock and
all such parity stock in proportion to the total amounts to which the holders of all such shares are entitled upon such liquidation, dissolution or winding up. In the event the Corporation shall at any time declare or pay any dividend on the Common
Stock payable in shares of Common Stock, or effect a subdivision, combination or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than by payment of a dividend in shares of Common Stock) into a greater or
lesser number of shares of Common Stock, then in each such case the aggregate amount to which holders of shares of Series B Preferred Stock were entitled immediately prior to such event under the proviso in clause (1) of the preceding sentence
shall be adjusted by multiplying such amount by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that are
outstanding immediately prior to such event. 
 (B) In the event, however, that there are not sufficient assets available to permit payment
in full of the Series B Liquidation Preference and the liquidation preferences of all other classes and series of stock of the Corporation, if any, that rank on a parity with the Series B Preferred Stock in respect thereof, then the assets available
for such distribution shall be distributed ratably to the holders of the Series B Preferred Stock and the holders of such parity shares in proportion to their respective liquidation preferences. 
 (C) Neither the merger or consolidation of the Corporation into or with another corporation nor the merger or consolidation of any other corporation into
or with the Corporation shall be deemed to be a liquidation, dissolution or winding up of the Corporation within the meaning of this Section 6. 
 Section 7. Consolidation, Merger, etc. In case the Corporation shall enter into any consolidation, merger, combination or other transaction in which the shares of Common Stock are exchanged for or changed into
other stock or securities, cash and/or any other property, then in any such case each share of Series B Preferred Stock shall at the same time be similarly exchanged or changed into an amount per share, subject to the provision for 

  

 A-5 








 
adjustment hereinafter set forth, equal to 200 times the aggregate amount of stock, securities, cash and/or any other property (payable in kind), as the case
may be, into which or for which each share of Common Stock is changed or exchanged. In the event the Corporation shall at any time declare or pay any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision,
combination or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser number of shares of Common Stock, then in each such case the
amount set forth in the preceding sentence with respect to the exchange or change of shares of Series B Preferred Stock shall be adjusted by multiplying such amount by a fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. 
 Section 8. No Redemption. The shares of Series B Preferred Stock shall not be redeemable by the Company. 
 Section 9. Rank. The Series B Preferred Stock shall rank, with respect to the payment of dividends and the distribution of assets upon liquidation, dissolution or winding up, junior to the Series A Non-Voting Non-Convertible
Preferred Stock and all other series of any other class of the Corporation’s Preferred Stock, except to the extent that any such other series specifically provides that it shall rank on a parity with or junior to the Series B Preferred Stock.

 Section 10. Amendment. At any time any shares of Series B Preferred Stock are outstanding, neither the Certificate of Incorporation
nor this Certificate of Designation, Preferences and Rights shall be amended in any manner which would materially alter or change the powers, preferences or special rights of the Series B Preferred Stock, as set forth herein, so as to affect them
adversely without the affirmative vote of the holders of at least two-thirds of the outstanding shares of Series B Preferred Stock, voting separately as a single class. 
 Section 11. Fractional Shares. Series B Preferred Stock may be issued in fractions of a share that shall entitle the holder, in proportion to such holder’s fractional shares, to exercise voting rights,
receive dividends, participate in distributions and to have the benefit of all other rights of holders of Series B Preferred Stock. 
 FOURTH: The shares of Series B Preferred Stock have been classified and designated by the Board of Directors under the authority contained in the Certificate of Incorporation. 
 FIFTH: This Certificate of Amendment of Certificate of Designation, Preferences and Rights has been approved by the Board of Directors in
the manner and by the vote required by law. 
  

 A-6 








 SIXTH: The undersigned officer acknowledges this Certificate of Amendment of Certificate
of Designation, Preferences and Rights to be the corporate act of the Corporation and, as to all matters of fact required to be verified under oath, the undersigned officer acknowledges that to the best of his knowledge, information and belief,
these matters and facts are true in all material respects and that this statement is made under the penalties for perjury. 
 IN WITNESS
WHEREOF, the undersigned has executed this Certificate of Amendment of Certificate of Designation, Preferences and Rights on August _, 2003. 
  

			
	
		
	By:	 	 
		 	Fredric D. Price
		 	Chairman and Chief Executive Officer of
		 	BioMarin Pharmaceutical Inc.


  

 A-7 








 Exhibit B 
 Form of Right Certificate 
  

			
	 Certificate No. R-
	  	                Rights

 NOT EXERCISABLE AFTER SEPTEMBER 23, 2012 OR EARLIER IF NOTICE OF REDEMPTION OR EXCHANGE IS GIVEN OR
IF THE COMPANY IS MERGED OR ACQUIRED PURSUANT TO AN AGREEMENT OF THE TYPE DESCRIBED IN SECTION 1.3(ii)(A)(z) OF THE AGREEMENT. THE RIGHTS ARE SUBJECT TO REDEMPTION AT $.001 PER RIGHT, AND TO EXCHANGE ON THE TERMS SET FORTH IN THE AGREEMENT.
UNDER CERTAIN CIRCUMSTANCES (SPECIFIED IN SECTION 11.1.2 OF THE AGREEMENT), RIGHTS BENEFICIALLY OWNED BY OR TRANSFERRED TO AN ACQUIRING PERSON (AS DEFINED IN THE AGREEMENT), OR ANY SUBSEQUENT HOLDER OF SUCH RIGHTS WILL BECOME NULL AND VOID AND
WILL NO LONGER BE TRANSFERABLE. 
 Right Certificate 
 BIOMARIN PHARMACEUTICAL INC. 
 This certifies that
                            , or registered assigns, is the registered owner of the number of Rights
set forth above, each of which entitles the owner thereof, subject to the terms, provisions and conditions of the Amended and Restated Rights Agreement, dated as of February 27, 2009 as the same may be amended from time to time (the
“Agreement”), between BioMarin Pharmaceutical Inc., a Delaware corporation (the “Company”), and Mellon Investor Services LLC, a New Jersey limited liability company, as Rights Agent (the “Rights Agent”), to
purchase from the Company at any time after the Distribution Date and prior to 5:00 p.m. (Pacific time) on September 23, 2012, at the offices of the Rights Agent, or its successors as Rights Agent, designated for such purpose, one
two-hundredth of a fully paid, nonassessable share of Series B Junior Participating Preferred Stock, $.001 par value per share (the “Preferred Shares”) of the Company, at a purchase price of $35.00 per two-hundredth of a Preferred Share,
subject to adjustment (the “Purchase Price”), upon presentation and surrender of this Right Certificate with the Form of Election to Purchase and certification duly executed. The number of Rights represented by this Right Certificate (and
the number of two-hundredths of a Preferred Share which may be purchased upon exercise thereof) set forth above, and the Purchase Price set forth above, are the number and Purchase Price as of August 7, 2003 based on the Preferred Shares as
constituted at such date. Capitalized terms used in this Right Certificate without definition shall have the meanings ascribed to them in the Agreement. As provided in the Agreement, the Purchase Price and the number of Preferred Shares which may be
purchased upon the exercise of the Rights represented by this Right Certificate are subject to modification and adjustment upon the happening of certain events. The Company reserves the right to require prior to the occurrence of a Trigger Event (as
such term is defined in the Agreement) that, upon any exercise of Rights, a number of Rights be exercised so that only whole shares of Preferred Stock will be issued. 
  

 B-1 








 This Right Certificate is subject to all of the terms, provisions and conditions of the Agreement, which
terms, provisions and conditions are hereby incorporated herein by reference and made a part hereof and to which Agreement reference is hereby made for a full description of the rights, limitations of rights, obligations, duties and immunities
hereunder of the Rights Agent, the Company and the holders of the Right Certificates. Copies of the Agreement are on file at the principal offices of the Company and the office of the Rights Agent designated to the Company for such purposes.

 This Right Certificate, with or without other Right Certificates, upon surrender at the offices of the Rights Agent designated for such
purpose, may be exchanged for another Right Certificate or Right Certificates of like tenor and date representing Rights entitling the holder to purchase the same aggregate number of two-hundredths of a Preferred Share as the Rights represented by
the Right Certificate or Right Certificates surrendered shall have entitled such holder to purchase. If this Right Certificate shall be exercised in part, the holder shall be entitled to receive upon surrender hereof another Right Certificate or
Right Certificates for the number of whole Rights not exercised. 
 Subject to the provisions of the Agreement, the Board of Directors may,
at its option, (i) redeem the Rights represented by this Right Certificate at a redemption price of $.001 per Right or (ii) exchange Common Shares for the Rights represented by this Certificate, in whole or in part. Immediately upon the
action of the Board of Directors authorizing redemption, the Rights will terminate and the only right of the holders of Rights will be to receive the redemption price. 
 No fractional Preferred Shares will be issued upon the exercise of any Right or Rights represented hereby (other than fractions of Preferred Shares which are integral multiples of one two-hundredth of a Preferred
Share, which may, at the election of the Company, be represented by depositary receipts), but in lieu thereof a cash payment will be made, as provided in the Agreement. 
 No holder of this Right Certificate, as such, shall be entitled to vote or receive dividends or be deemed for any purpose the holder of the Preferred Shares or of any other securities of the Company which may at any
time be issuable on the exercise hereof, nor shall anything contained in the Agreement or herein be construed to confer upon the holder hereof, as such, any of the rights of a stockholder of the Company or any right to vote for the election of
directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings or other actions affecting stockholders (except as provided in the Agreement) or
to receive dividends or subscription rights, or otherwise, until the Right or Rights represented by this Right Certificate shall have been exercised as provided in the Agreement. 
 If any term, provision, covenant or restriction of the 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 the Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated. 
  

 B-2 








 This Right Certificate shall not be valid or binding for any purpose until it shall have been
countersigned by the Rights Agent. 
 WITNESS the facsimile signature of the proper officers of the Company and its corporate seal. Dated as
of                         , 20    . 
  

									
	Attest:	 		 	BIOMARIN PHARMACEUTICAL INC.
				
	 	 		 	By:	 	 
	Title:	 		 		 		 	Title:
			
	Countersigned:	 		 	
	MELLON INVESTOR SERVICES LLC, as Rights Agent	 		 	
					
	By:	 	 	 		 		 	
		 	Authorized Signature	 		 		 	

  

 B-3 








 Form of Reverse Side of Right Certificate 
 FORM OF ASSIGNMENT 
 (To be executed by the registered holder if such holder 

desires to transfer the Right Certificate.) 
  

					
	FOR VALUE RECEIVED	  	 


					
		
	hereby sells, assigns and transfers unto	  	 


					
	
	 


					
	
	 

 (Please print name and address of transferee) 
 Rights represented by this Right Certificate, together with all right, title and interest therein, and does hereby irrevocably constitute and appoint Attorney, to
transfer the within Right Certificate on the books of the within-named Company, with full power of substitution. 
  

					
	Dated:	 		 	
			
	  	 		 	  
	Signature Guaranteed:	 		 	Signature
			
	  	 		 	 
	Signature Guaranteed:	 		 	

 Signatures must be guaranteed by an “eligible guarantor institution” as defined in Rule
17Ad-15 promulgated under the Securities Exchange Act of 1934, as amended. 
 The undersigned hereby certifies that: 
 (1) the Rights represented by this Right Certificate are not beneficially owned by and are not being assigned to an Acquiring Person or an Affiliate or
an Associate thereof; and 
 (2) after due inquiry and to the best knowledge of the undersigned, the undersigned did not acquire the Rights
represented by this Right Certificate from any person who is, was, had been or subsequently became an Acquiring Person or an Affiliate or Associate thereof. 
  

					
	Dated:	 		 	
			
	  	 		 	  
		 		 	Signature

  

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 FORM OF ELECTION TO PURCHASE 
 (To be executed if holder desires to 
 exercise the Right Certificate.) 
 To: BioMarin Pharmaceutical Inc. 
 The undersigned hereby
irrevocably elects to exercise                              Rights represented by this Right
Certificate to purchase the Preferred Shares issuable upon the exercise of such Rights (or such other securities or property of the Company or of any other Person which may be issuable upon the exercise of the Rights) and requests that certificates
for such shares be issued in the name of: 
  

	
	
	
	  
	(Please print name and address)
	
	
	 

 If such number of Rights shall not be all the Rights represented by this Right Certificate, a new Right
Certificate for the balance remaining of such Rights shall be registered in the name of and delivered to: Please insert social security or other identifying number. 
  

	
	
	
	  
	(Please print name and address)
	
	 

  

					
	Dated: _____________________________	 		 	
			
	 	 		 	  
	 	 		 	Signature
			
	 Signature Guaranteed:
	 		 	
			
	  	 		 	 
		 		 	

  

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 Signatures must be guaranteed by an “eligible guarantor institution” as defined in Rule 17Ad-15
promulgated under the Securities Exchange Act of 1934, as amended. The undersigned hereby certifies that: 
 (1) the Rights represented by
this Right Certificate are not beneficially owned by and are not being assigned to an Acquiring Person or an Affiliate or an Associate thereof; and 
 (2) after due inquiry and to the best knowledge of the undersigned, the undersigned did not acquire the Rights represented by this Right Certificate from any person who is, was, had been or subsequently became an Acquiring Person or an
Affiliate or Associate thereof. 
  

					
	Dated: _____________________________	 		 	
			
	 	 		 	  
		 		 	Signature

 NOTICE 
 The signature in the foregoing Form of Assignment and Form of Election to Purchase must conform to the name as written upon the face of this Right Certificate in every particular, without alteration or enlargement or
any change whatsoever. 
 In the event the certification set forth above in the Form of Assignment or Form of Election to Purchase is not
completed, the Company will deem the beneficial owner of the Rights represented by this Right Certificate to be an Acquiring Person or an Affiliate or Associate hereof and such Assignment or Election to Purchase will not be honored. 
  

 B-6 








 Exhibit C 
 As described in the Rights Agreement, as defined below, Rights which are held by or have been held by an Acquiring Person or Associates or Affiliates thereof (as defined in the Rights Agreement) and certain transferees thereof are null
and void and are not transferable. 
 SUMMARY OF RIGHTS TO PURCHASE PREFERRED SHARES 
 On September 11, 2002 the Board of Directors of BioMarin Pharmaceutical Inc. (the “Company”) authorized a dividend of one preferred share purchase
right (a “Right”) for each share of common stock, $.001 par value per share (“Common Shares”) of the Company outstanding at the close of business on September 23, 2002 (the “Record Date”). As long as the Rights are
attached to the Common Shares, the Company will issue one Right (subject to adjustment) with each new Common Share so that all such shares will have attached Rights. When exercisable, each Right will entitle the registered holder to purchase from
the Company one one-hundredth of a share of Series B Junior Participating Preferred Stock (the “Preferred Shares”) at a price of $35.00 per one-hundredth of a Preferred Share, subject to adjustment (the “Purchase Price”).
The description and terms of the Rights are set forth in a Rights Agreement, dated as of September 11, 2002, as amended and restated on August 7, 2003 and February 27, 2009, and as the same may be further amended from time to time
(the “Rights Agreement”), between the Company and Mellon Investor Services LLC, a New Jersey limited liability company, as Rights Agent (the “Rights Agent”). 
 DETACHMENT AND TRANSFER OF RIGHTS 
 Initially, the Rights will be attached to all Common Stock certificates evidencing
shares then outstanding, or, for Common Shares held in book-entry accounts through the direct registration services of the Company’s transfer agent, by such book entry-accounts, together with a direct registration transaction advice with
respect to such shares, and no separate Rights certificates will be distributed. Until the earlier to occur of (i) ten (10) days following a public announcement that a person or group of affiliated or associated persons has acquired, or
obtained the right to acquire, beneficial ownership of 15% or more of the Common Shares (an “Acquiring Person”) or (ii) ten (10) business days (or such later date as may be determined by action of the Board of Directors prior to
such time as any person or group of affiliated persons becomes an Acquiring Person) following the commencement or announcement of an intention to make a tender offer or exchange offer the consummation of which would result in the beneficial
ownership by a person or group of 15% or more of the Common Shares (the earlier of (i) and (ii) being called the “Distribution Date”), the Rights will be represented, with respect to any of the Common Share certificates
outstanding as of the Record Date, by such Common Share certificate (or, for Common Shares held in book-entry accounts through the direct registration services of the Company’s transfer agent, by such book entry-accounts, together with a direct
registration transaction advice with respect to such shares). 
  

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 The Rights Agreement provides that until the Distribution Date (or earlier redemption, exchange, termination or
expiration of the Rights), the Rights will be transferred with and only with the Common Shares. Until the Distribution Date (or earlier redemption, exchange, termination or expiration of the Rights), new Common Share certificates issued after the
close of business on the Record Date upon transfer or new issuance of the Common Shares will contain a notation incorporating the Rights Agreement by reference (or, for Common Shares held in book-entry accounts through the direct registration
services of the Company’s transfer agent, a legend on the direct registration transaction advice with respect to such shares). Until the Distribution Date (or earlier redemption, exchange, termination or expiration of the Rights), the surrender
for transfer of any certificates for Common Shares, with or without such notation or a copy of this Summary of Rights, will also constitute the transfer of the Rights associated with the Common Shares represented by such certificate. As soon as
practicable following the Distribution Date, separate certificates representing the Rights (“Right Certificates”) will be mailed to holders of record of the Common Shares as of the close of business on the Distribution Date and such
separate Right Certificates alone will represent the Rights. In the event the Company elects to distribute any Rights by crediting book-entry accounts, the provisions described in this summary that reference Right Certificates will be interpreted to
reflect that the Rights are credits to the book-entry accounts, that separate Right Certificates are not issued with respect to some or all of the Rights, and that any legend required on a Right Certificate may be placed on the direct registration
transaction advice with respect to such Rights. 
 EXERCISABILITY OF RIGHTS 
 The Rights are not exercisable until the Distribution Date. The Rights will expire on September 23, 2012 subject to the Company’s right to extend such date (the “Final Expiration Date”), unless
earlier redeemed or exchanged by the Company or terminated. Until a Right is exercised, it will not entitle its holder to any rights as a stockholder of the Company, including, without limitation, the right to vote or to receive dividends.

 The Purchase Price payable, and the number of Preferred Shares or other securities or property issuable, upon exercise of the Rights are subject to
adjustment from time to time to prevent dilution (i) in the event of a stock dividend on, or a subdivision, combination or reclassification of, the Preferred Shares, (ii) upon the grant to holders of the Preferred Shares of certain rights
or warrants to subscribe for or purchase Preferred Shares or convertible securities at less than the current market price of the Preferred Shares or (iii) upon the distribution to holders of the Preferred Shares of evidences of indebtedness,
cash, securities or assets or of subscription rights or warrants (other than those referred to above). No adjustment in the Purchase Price will be required until cumulative adjustments require an adjustment of at least 1% in the Purchase Price. No
fractional Preferred Shares or Common Shares will be issued (other than fractions of Preferred Shares which are integral multiples of one one-hundredth of a Preferred Share, which may, at the election of the Company, be represented by depository
receipts), and in lieu thereof, a payment in cash will be made based on the market price of the Preferred Shares or Common Shares on the last trading date prior to the date of exercise. 
  

 C-2 








 TERMS OF PREFERRED SHARES 
 Each Preferred Share purchasable upon exercise of the Rights will be entitled, when, as and if declared, to a minimum preferential quarterly dividend payment of $0.01 per share but will be entitled to an aggregate dividend of 100 times the
dividend, if any, declared per Common Share. In the event of liquidation, dissolution or winding up of the Company, the holders of the Preferred Shares will be entitled to a minimum preferential liquidation payment of $10,000 per share (plus any
accrued but unpaid dividends) but will be entitled to an aggregate payment of 100 times the payment made per Common Share. Each Preferred Share will have 100 votes and will vote together with the Common Shares. Finally, in the event of any merger,
consolidation or other transaction in which Common Shares are exchanged, each Preferred Share will be entitled to receive 100 times the amount received per Common Share. Preferred Shares will not be redeemable. These rights are protected by
customary antidilution provisions. Because of the nature of the Preferred Share’s dividend, liquidation and voting rights, the value of one one-hundredth of a Preferred Share purchasable upon exercise of each Right should approximate the value
of one Common Share. 
 TRIGGER OF FLIP-IN AND FLIP-OVER RIGHTS 
 In the event that a person becomes an Acquiring Person, each holder of a Right, other than Rights that are or were acquired or beneficially owned by the Acquiring Person (which Rights will be void), will thereafter have the right to
receive, upon exercise thereof, that number of Common Shares having a market value of two times the then-current Purchase Price of the Right. This right will commence on the date of public announcement that a person has become an Acquiring Person
(or the effective date of a registration statement relating to distribution of the Rights, if later) and terminate 60 days later (subject to adjustment in the event exercise of the Rights is enjoined). 
 For example, at an exercise price of $35.00 per Right, each Right not owned by an Acquiring Person (or by certain related parties) following a Trigger Event would
entitle its holder to purchase $70.00 worth of Common Stock (or other consideration, as noted above) for $35.00. Assuming that the Common Stock had a per share value of $10.00 at such time, the holder of each valid Right would be entitled to
purchase seven shares of Common Stock for $35.00. 
 In the event that the Company is acquired in a merger or other business combination transaction or more
than 50% of its assets or earning power are sold to an Acquiring Person, proper provision shall be made so that each holder of a Right shall thereafter have the right to receive, upon the exercise thereof at the then-current Purchase Price of the
Right, that number of shares of common stock of the acquiring company which at the time of such transaction would have a market value of two times the then-current Purchase Price of the Right. 
 EXCHANGE OF RIGHTS 
 At any time after a person becomes an Acquiring
Person and prior to the acquisition by such person or group of 50% or more of the outstanding Common Shares, the Board of Directors may cause the Company to exchange the Rights (other than Rights owned by an Acquiring 

  

 C-3 








 
Person, which will be void), in whole or in part, for Common Shares at an exchange ratio of one Common Share per Right (subject to adjustment). In effecting
an exchange, the Company may enter into a trust agreement by which it transfers to a trust all Common Shares issued pursuant to the exchange. The trust would hold the Common Shares for the benefit of stockholders entitled to receive them pursuant to
the exchange. 
 REDEMPTION 
 The Rights may be redeemed
in whole, but not in part, at a price of $.001 per Right (the “Redemption Price”) by the Board of Directors at any time prior to the time that an Acquiring Person has become such. The redemption of the Rights 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. In addition, the Rights may be redeemed in connection with certain business combination transactions not involving an Acquiring Person.
Immediately upon any redemption of the Rights, the right to exercise the Rights will terminate and the only right of the holders of Rights will be to receive the Redemption Price. 
 AMENDMENT OF RIGHTS 
 Any of the provisions of the Rights Agreement may be amended by the Board of Directors for so
long as the Rights are then redeemable, and after the Rights are no longer redeemable, the Company may amend or supplement the Rights Agreement in any manner that does not adversely affect the interests of the holders of the Rights. 
 ADDITIONAL INFORMATION 
 The Rights are designed to assure that all of
the Company’s stockholders receive fair and equal treatment in the event of any proposed takeover of the Company and to guard against partial tender offers, open market accumulations and other abusive tactics to gain control of the Company
without paying all stockholders a control premium. The Rights will cause substantial dilution to a person or group that acquires 15% or more of the Company’s stock on terms not approved by the Company’s Board of Directors. The Rights
should not interfere with any merger or other business combination approved by the Board of Directors at any time before a person or group has become an Acquiring Person. 
 A copy of the Rights Agreement has been filed with the Securities and Exchange Commission as an Exhibit to the Company’s Annual Report on Form 10-K. A copy of the Rights Agreement is available free of charge from
the Company. This summary description of the Rights does not purport to be complete and is qualified in its entirety by reference to the Rights Agreement, which is incorporated herein by reference. 
  

 C-4 








 Exhibit D 
 RIGHTS AGENCY FEES 
  

				
	 Item
	  	Fee
	 Acceptance Fee
	  	$	2,500
	 Annual Administration Fee
	  	$	2,500
	 Legal Out-of-Pocket Expenses * 
	  		
	 Fee for reviewing the Agreement
	  	$	1,500
	 Fee for reviewing an Amendment
	  	$	750

  

	*	All rights agreements will be reviewed by outside counsel. The expenses associated with the review by outside counsel will be passed on to the client as an out-of-pocket expense.
The amounts quoted above represent approximate billing amounts for the work described. The amount charged to the client could be more, or less, depending on the complexity of the work done by the outside counsel. 

  

 D-1