EX-4.1 RIGHTS AGREEMENT






Exhibit 4.1




 





GAYLORD ENTERTAINMENT COMPANY




and




COMPUTERSHARE TRUST COMPANY, N.A.




Rights Agreement




Dated as of August 12, 2008




 





 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 	 	 	 	Number	 
	Section 1.
	 	Definitions	 	 	1	 
	Section 2.
	 	Appointment of Rights Agent	 	 	4	 
	Section 3.
	 	Issue of Right Certificates	 	 	4	 
	Section 4.
	 	Form of Right Certificates	 	 	6	 
	Section 5.
	 	Countersignature and Registration	 	 	6	 
	Section 6.
	 	Transfer, Split Up, Combination and Exchange of Right Certificates; Mutilated,	 	 	 	 
	 
	 	Destroyed, Lost or Stolen Right Certificates	 	 	7	 
	Section 7.
	 	Exercise of Rights; Purchase Price; Expiration Date of Rights	 	 	8	 
	Section 8.
	 	Cancellation and Destruction of Right Certificates	 	 	8	 
	Section 9.
	 	Availability of Preferred Shares	 	 	9	 
	Section 10.
	 	Preferred Shares Record Date	 	 	10	 
	Section 11.
	 	Adjustment of Purchase Price, Number of Shares or Number of Rights	 	 	10	 
	Section 12.
	 	Certificate of Adjusted Purchase Price or Number of Shares	 	 	16	 
	Section 13.
	 	Consolidation, Merger or Sale or Transfer of Assets or Earning Power	 	 	16	 
	Section 14.
	 	Fractional Rights and Fractional Shares	 	 	17	 
	Section 15.
	 	Rights of Action	 	 	18	 
	Section 16.
	 	Agreement of Right Holders	 	 	18	 
	Section 17.
	 	Right Certificate Holder Not Deemed a Stockholder	 	 	19	 
	Section 18.
	 	Concerning the Rights Agent	 	 	19	 
	Section 19.
	 	Merger or Consolidation or Change of Name of Rights Agent	 	 	20	 
	Section 20.
	 	Duties of Rights Agent	 	 	20	 
	Section 21.
	 	Change of Rights Agent	 	 	22	 






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	 	 	 	 	Page	 
	 	 	 	 	Number	 
	Section 22.
	 	Issuance of New Right Certificates	 	 	22	 
	Section 23.
	 	Redemption	 	 	23	 
	Section 24.
	 	Exchange	 	 	23	 
	Section 25.
	 	Notice of Certain Events	 	 	24	 
	Section 26.
	 	Notices	 	 	25	 
	Section 27.
	 	Supplements and Amendments	 	 	26	 
	Section 28.
	 	Successors	 	 	26	 
	Section 29.
	 	Determinations and Actions by the Board of Directors, etc	 	 	26	 
	Section 30.
	 	Benefits of this Agreement	 	 	26	 
	Section 31.
	 	Severability	 	 	27	 
	Section 32.
	 	Governing Law	 	 	27	 
	Section 33.
	 	Counterparts	 	 	27	 
	Section 34.
	 	Descriptive Headings	 	 	27	 
	Section 35.
	 	Force Majeure	 	 	27	 
	Signatures
	 	 	 	 	28	 
	 
	 	 	 	 	 	 
	Exhibit A 
	-   	Form of Certificate of Designations	 	 	 	 
	Exhibit B 
	-	Form of Right Certificate	 	 	 	 
	Exhibit C 
	-	Summary of Rights to Purchase Preferred Shares	 	 	 	 






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          Rights Agreement (“Agreement”), dated as of August 12, 2008, between Gaylord Entertainment
Company, a Delaware corporation (the “Company”), and Computershare Trust Company, N.A., a
federally chartered trust company, as rights agent (the “Rights Agent”).



          The Board of Directors of the Company has authorized and declared a dividend of one preferred
share purchase right (a “Right”) for each Common Share (as hereinafter defined) of the
Company outstanding on August 25, 2008 (the “Record Date”), each Right representing the
right to purchase one one-hundredth of a Preferred Share (as hereinafter defined), upon the terms
and subject to the conditions herein set forth, and has further authorized and directed the
issuance of one Right with respect to each Common Share that shall become outstanding between the
Record Date and the earliest of the Distribution Date, the Redemption Date and the Final Expiration
Date (as such terms are hereinafter defined).



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


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


(a) “Acquiring Person” shall mean any Person who or which, together with all Affiliates and
Associates of such Person, shall be the Beneficial Owner of 15% or more of the Common Shares of
the Company then outstanding, but shall not include the Company, any Subsidiary of the Company, any
employee benefit or stock ownership plan of the Company or any Subsidiary of the Company, or any
entity holding Common Shares for or pursuant to the terms of any such plan. Notwithstanding the
foregoing, 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 Common Shares of the Company outstanding,
increases the proportionate number of Common Shares of the Company beneficially owned by such
Person to 15% or more of the Common Shares of the Company then outstanding; provided,
however, that, if a Person shall become the Beneficial Owner
of 15% or more of the Common
Shares of the Company then outstanding by reason of share purchases by the Company and shall, after
such share purchases by the Company, become the Beneficial Owner of any additional Common Shares of
the Company, then such Person shall be deemed to be an “Acquiring Person.” Notwithstanding the
foregoing, if the Board of Directors of the Company determines in good faith that a Person who
would otherwise be an “Acquiring Person,” as defined pursuant to the foregoing provisions of this
paragraph (a), has become such inadvertently, and such Person divests as promptly as practicable a
sufficient number of Common Shares, so that such Person would no longer be an “Acquiring Person,”
as defined pursuant to the foregoing provisions of this paragraph (a), then such Person shall not
be deemed to be an “Acquiring Person” for any purposes of this Agreement.


(b) “Affiliate” shall have the meaning ascribed to such term in Rule 12b-2 of the General
Rules and Regulations under the Exchange Act as in effect on the date of this Agreement.


(c) “Associate” shall have the meaning ascribed to such term in Rule 12b-2 of the General
Rules and Regulations under the Exchange Act as in effect on the date of this Agreement.



 









 







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



     (i) which such Person or any of such Person’s Affiliates or Associates, directly or
indirectly, beneficially owns, within the meaning of Rule 13d-3 of the General Rules and
Regulations promulgated under the Exchange Act as in effect on the date of this Agreement;



     (ii) which such Person or any of such Person’s Affiliates or Associates has (A) the right to
acquire (whether such right is exercisable immediately or only after the passage of time or upon
the satisfaction of any condition, whether or not within the control of such Person, Affiliate or
Associate) pursuant to any agreement, arrangement or understanding (whether or not in writing, but
other than customary agreements with and between underwriters and selling group members with
respect to a bona fide public offering of securities), or upon the exercise of
conversion rights, exchange rights, rights (other than these Rights), warrants or options, or
otherwise; provided, however, that a Person shall not be deemed the Beneficial
Owner of, or to beneficially own, securities tendered pursuant to a tender or exchange offer made
by or on behalf of such Person or any of such Person’s Affiliates or Associates until such tendered
securities are accepted for purchase or exchange; or (B) the right to vote pursuant to any
agreement, arrangement or understanding (whether or not in writing); provided,
however, that a Person shall not be deemed the Beneficial Owner of, or to beneficially own,
any security if the agreement, arrangement or understanding to vote such security (1) arises solely
from a revocable proxy or consent given to such Person in response to a public proxy or consent
solicitation made pursuant to, and in accordance with, the applicable rules and regulations
promulgated under the Exchange Act and (2) is not also then reportable on Schedule 13D under the
Exchange Act (or any comparable or successor report); or



     (iii) which are beneficially owned, directly or indirectly, by any other Person with which
such Person or any of such Person’s Affiliates or Associates has any agreement, arrangement or
understanding (whether or not in writing, but other than customary agreements with and between
underwriters and selling group members with respect to a bona fide public offering
of securities) for the purpose of acquiring, holding, voting (except to the extent contemplated by
the proviso to Section 1(d)(ii)(B) hereof) or disposing of any securities of the Company.



          Notwithstanding anything in this definition of Beneficial Ownership to the contrary, (i) the
phrase “then outstanding,” when used with reference to a Person’s Beneficial Ownership of
securities of the Company, shall mean the number of such securities then issued and outstanding
together with the number of such securities not then actually issued and outstanding which such
Person would be deemed to own beneficially hereunder and (ii) nothing in this Section 1(d) shall
cause a Person engaged in business as an underwriter of securities to be the “Beneficial Owner” of,
or to “beneficially own,” any securities acquired through such Person’s participation in good faith
in a firm commitment underwriting until the expiration of forty days after the date of such
acquisition, and then only if such securities continue to be owned by such Person at such
expiration of forty days.


(e) “Business Day” shall mean any day other than a Saturday, a Sunday, or a day on which
banking institutions in Boston, Massachusetts are authorized or obligated by law or executive order
to close.



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


(g) “Common Shares” when used with reference to the Company shall mean the shares of common
stock, par value $.01 per share, of the Company. “Common Shares” when used with reference to any
Person other than the Company shall mean the capital stock (or equity interest) with the greatest
voting power of such other Person or, if such other Person is a Subsidiary of another Person, the
Person or Persons which ultimately control such first-mentioned Person.


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


(i) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.


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


(k) “Final Expiration Date” shall have the meaning set forth in Section 7(a) hereof.


(l) “NYSE” shall mean the New York Stock Exchange.


(m) “Person” shall mean any individual, firm, corporation, partnership, limited liability
company, limited liability partnership, association, trust, syndicate or other entity, and shall
include any successor (by merger or otherwise) of such entity, as well as any unincorporated group
of individuals or entities that, by formal or informal agreement or arrangement (whether or not in
writing), have embarked on a common purpose or act.


(n) “Preferred Shares” shall mean shares of Series A Junior Participating Preferred Stock,
par value $.01 per share, of the Company having the rights and preferences set forth in the Form of
Certificate of Designations attached to this Agreement as Exhibit A.


(o) “Purchase Price” shall have the meaning set forth in Section 4 hereof.


(p) “Record Date” shall have the meaning set forth in the second paragraph hereof.


(q) “Redemption Date” shall have the meaning set forth in Section 7(a) hereof.


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


(s) “Reduced Threshold” shall have the meaning set forth in Section 27 hereof.


(t) “Right” shall have the meaning set forth in the second paragraph hereof.


(u) “Right Certificate” shall have the meaning set forth in Section 3(a) hereof.


(v) “Shares Acquisition Date” shall mean the first date of public announcement by the
Company or an Acquiring Person that an Acquiring Person has become such.



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


(x) “Summary of Rights” shall have the meaning set forth in Section 3(b) hereof.


(y) “Trading Day” shall have the meaning set forth in Section 11(d) hereof.


Section 2. Appointment of Rights Agent. The Company hereby appoints the Rights Agent to
act as agent for the Company in accordance with the terms and conditions hereof, and the Rights
Agent hereby accepts such appointment. The Company may from time to time appoint such co-Rights
Agents as it may deem necessary or desirable, 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.


Section 3. Issue of Right Certificates. (a) Until the earlier of (i) the Close of
Business on the tenth day after the Shares Acquisition Date or (ii) the Close of Business on the
tenth Business Day (or such later date as may be determined by action of the Board of Directors of
the Company prior to such time as any Person becomes an Acquiring Person) after the date of the
commencement by any Person (other than the Company, any Subsidiary of the Company, any employee
benefit or stock ownership plan or of the Company or of any Subsidiary of the Company or any entity
holding Common Shares of the Company for or pursuant to the terms of any such plan) of a tender or
exchange offer the consummation of which would result in any Person becoming the Beneficial Owner
of Common Shares of the Company aggregating 15% or more of the then outstanding Common Shares of
the Company (including any such date which is after the date of this Agreement and prior to the
issuance of the Rights; the earlier of such dates being herein referred to as the “Distribution
Date”), (x) the Rights will be evidenced (subject to the provisions of Section 3(b) hereof) by
the balances indicated in the book-entry account system of the transfer agent for the Common Shares
registered in the names of the holders thereof (which Common Shares shall also be deemed to
represent Right Certificates) or, in the case of certificated shares, the certificates for Common
Shares of the Company registered in the names of the holders thereof (which certificates shall also
be deemed to be Right Certificates) and not by separate Right Certificates, and (y) the right to
receive Right Certificates will be transferable only in connection with the transfer of Common
Shares of the Company. As soon as practicable after the Distribution Date, the Company will
prepare and execute, the Rights Agent will countersign, and the Company will send or cause to be
sent (and the Rights Agent will, if requested, send) by first-class, insured, postage-prepaid mail,
to each record holder of Common Shares of the Company as of the Close of Business on the
Distribution Date, at the address of such holder shown on the records of the Company, a Right
Certificate, in substantially the form of Exhibit B hereto (a “Right Certificate”),
evidencing one Right for each Common Share so held. As of the Distribution Date, the Rights will
be evidenced solely by such Right Certificates.


(b) On the Record Date, or as soon as practicable thereafter, the Company will send a copy of a
Summary of Rights to Purchase Preferred Shares, in substantially the form of Exhibit C hereto (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. At any time following the Record Date, the Company



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will send a copy of the Summary of Rights, by first-class, postage-prepaid mail, to any record
holder of Common Shares who requests a copy of the Summary of Rights, at the address of such holder
shown on the records of the Company. With respect to certificates for Common Shares of the Company
outstanding as of the Record Date, until the Distribution Date, the Rights will be evidenced by the
balances indicated in the book-entry account system of the transfer agent for the Common Shares or,
in the case of certificated shares, such certificates registered in the names of the holders
thereof together with a copy of the Summary of Rights attached thereto. Until the Distribution
Date (or the earlier of the Redemption Date or the Final Expiration Date), the surrender for
transfer of any certificate for Common Shares of the Company outstanding on the Record Date, with
or without a copy of the Summary of Rights attached thereto, shall also constitute the transfer of
the Rights associated with the Common Shares of the Company represented thereby.


(c) Rights shall be issued in respect of all Common Shares issued (or delivered from the Company’s
treasury) after the Record Date but prior to the earliest of the Distribution Date, the Redemption
Date or the Final Expiration Date and shall be evidenced by the following legends:



     (i) Confirmation and account statements sent to holders of Common Shares in book-entry form
(which Common Shares shall also be deemed to represent certificates for Rights) shall bear the
following legend:



The shares of Common Stock, par value $0.01 per share, of Gaylord Entertainment Company (the
“Corporation”) entitle the holder thereof to certain Rights as set forth in a Rights
Agreement between the Corporation and Computershare Trust Company, N.A., dated as of August
12, 2008 (the “Rights Agreement”), the terms of which are hereby incorporated herein
by reference and a copy of which is on file at the principal executive offices of the
Corporation. Under certain circumstances, as set forth in the Rights Agreement, such Rights
will be evidenced by separate certificates and will no longer be evidenced by the shares to
which this statement relates. The Corporation will mail (or cause the Rights Agent to mail)
to the holder of shares to which this statement relates a copy of the Rights Agreement
without charge promptly after receipt of a written request therefor. Under certain
circumstances set forth in the Rights Agreement, Rights issued to an Acquiring Person or any
Associate or Affiliate thereof (as such terms are defined in the Rights Agreement) may be
null and void. The Rights shall not be exercisable, and shall be void so long as held, by a
holder in any jurisdiction where the requisite qualification for the issuance to such
holder, or the exercise by such holder of the Rights in such jurisdiction, shall not have
been obtained or be obtainable.


With respect to Common Shares in book-entry form for which there has been sent a confirmation or
account statement containing the foregoing legend, until the earliest of the Distribution Date, the
Redemption Date or the Final Expiration Date, the Rights associated with the Common Shares shall be
evidenced by such Common Shares alone and registered holders of Common Shares shall also be the
registered holders of the associated Rights, and the transfer of any of such Common Shares shall
also constitute the transfer of the Rights associated with such shares of Common Shares.



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



This certificate also evidences and entitles the holder hereof to certain rights as set
forth in an Agreement between Gaylord Entertainment Company (the “Corporation”) and
Computershare Trust Company, N.A., as Rights Agent, dated as of August 12, 2008, as it 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 Corporation. Under certain circumstances, as set forth in the Agreement,
such Rights (as defined in the Agreement) will be evidenced by separate certificates and
will no longer be evidenced by this certificate. The Corporation will mail (or cause the
Rights Agent to mail) to the holder of this certificate a copy of the Agreement without
charge after receipt of a written request therefor. As set forth in the Agreement, Rights
beneficially owned by any Person (as defined in the Agreement) who becomes an Acquiring
Person (as defined in the Agreement) become null and void.


With respect
to such certificates containing the foregoing legend, until the earliest of the
Distribution Date, the Redemption Date or the Final Expiration Date, the Rights associated with the
Common Shares of the Company represented by such certificates shall be evidenced by such
certificates alone, and the surrender for transfer of any such certificate shall also constitute
the transfer of the Rights associated with the Common Shares of the Company represented thereby.
In the event that the Company purchases or acquires any Common Shares of the Company after the
Record Date but prior to the Distribution Date, the Redemption Date or the Final Expiration Date,
any Rights associated with such Common Shares of the Company shall be deemed cancelled and retired
so that the Company shall not be entitled to exercise any Rights associated with the Common Shares
of the Company which are no longer outstanding.


Section 4. Form of Right Certificates. The Right Certificates (and the forms of election
to purchase Preferred Shares and of assignment to be printed on the reverse thereof) shall be
substantially the same as Exhibit 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 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 applicable rule or regulation made pursuant
thereto or with any applicable rule or regulation of any stock exchange, trading market or
automated quotation system on which the Right Certificates may from time to time be listed, or to
conform to customary usage. Subject to the provisions of Section 22 hereof, the Right Certificates
shall be dated as of the Record Date and on their face shall entitle the holders thereof to
purchase such number of one one-hundredths of a Preferred Share as shall be set forth therein at
the price per one one-hundredth of a Preferred Share set forth therein (the “Purchase
Price”), but the number of such one one-hundredths of a Preferred Share and the Purchase Price
shall be subject to adjustment as provided herein.


Section 5. Countersignature and Registration. The Right Certificates shall be executed on
behalf of the Company by its Chairman of the Board, its Chief Executive Officer, its President,



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any of its Vice Presidents or its Treasurer, either manually or by facsimile signature, shall have
affixed thereto the Company’s seal or a facsimile thereof, and shall be attested by the Secretary
or an Assistant Secretary of the Company, either manually or by facsimile signature. The Right
Certificates shall be countersigned by the Rights Agent, either manually or by facsimile signature,
and shall not be valid for any purpose unless 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 individual 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 individual 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 individual was not such an
officer.



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


Section 6. Transfer, Split Up, Combination and Exchange of Right Certificates; Mutilated,
Destroyed, Lost or Stolen Right Certificates. Subject to the provisions of Section 14 hereof,
at any time after the Close of Business on the Distribution Date, and at or prior to the Close of
Business on the earlier of the Redemption Date or the Final Expiration Date, any Right Certificate
or Right Certificates (other than Right Certificates representing Rights that have become void
pursuant to Section 11(a)(ii) hereof or that have been exchanged pursuant to Section 24 hereof) may
be transferred, split up, combined or exchanged for another Right Certificate or Right Certificates
entitling the registered holder to purchase a like number of one one-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, combine or exchange any Right
Certificate or Right Certificates shall make such request in writing delivered to the Rights Agent,
and shall surrender the Right Certificate or Right Certificates to be transferred, split up,
combined or exchanged at the principal office of the Rights Agent. Thereupon the Rights Agent
shall countersign and deliver to the Person entitled thereto a Right Certificate or Right
Certificates, as the case may be, as so requested. The Company may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in connection with any
transfer, split up, combination or exchange of Right Certificates.



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



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Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights. (a) The
registered holder of any Right Certificate may exercise the Rights evidenced thereby (except as
otherwise provided herein), in whole or in part, at any time after the Distribution Date, upon
surrender of the Right Certificate, with the form of election to purchase on the reverse side
thereof duly executed, to the Rights Agent at the principal office of the Rights Agent, together
with payment of the Purchase Price for each one one-hundredth of a Preferred Share as to which the
Rights are exercised, at or prior to the earliest of (i) the Close of Business on August 12, 2011,
or such later date as determined by the Board of Directors of the Company (so long as such
determination is made prior to August 12, 2011) (the “Final Expiration Date”), (ii) the
time at which the Rights are redeemed as provided in Section 23 hereof (the “Redemption
Date”), or (iii) the time at which such Rights are exchanged as provided in Section 24 hereof.


(b) The Purchase Price for each one one-hundredth of a Preferred Share purchasable pursuant to the
exercise of a Right shall initially be $95.00, and shall be subject to adjustment from
time to time as provided in Section 11 or 13 hereof, and shall be payable in lawful money of the
United States of America in accordance with paragraph (c) below.


(c) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election
to purchase duly executed, accompanied by payment of the Purchase Price for the shares to be
purchased and an amount equal to any applicable transfer tax required to be paid by the holder of
such Right Certificate in accordance with Section 9 hereof by certified check, cashier’s check or
money order payable to the order of the Company, the Rights Agent shall thereupon promptly (i) (A)
requisition from any transfer agent of the Preferred Shares certificates for the number of
Preferred Shares to be purchased and the Company hereby irrevocably authorizes any such transfer
agent to comply with all such requests, or (B) requisition from the depositary agent depositary
receipts representing such number of one one-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 of the Preferred Shares with such depositary agent) and the Company
hereby directs such depositary agent to comply with such request; (ii) when appropriate,
requisition from the Company the amount of cash to be paid in lieu of issuance of fractional shares
in accordance with Section 14 hereof; (iii) 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.


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


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 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,



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


(b) The Company shall use its reasonable best efforts to (i) file, as soon as practicable following
the earliest date after any Person, alone or together with its Affiliates and Associates, becomes
an Acquiring Person, or as soon as is required by law following the Distribution Date, as the case
may be, a registration statement under the Securities Act of 1933, as amended, with respect to the
securities purchasable upon exercise of the Rights on an appropriate form, (ii) cause such
registration statement to become effective as soon as practicable after such filing, and (iii)
cause such registration statement to remain effective (with a prospectus at all times meeting the
requirements of the Act) until the earlier of (A) the date as of which the Rights are no longer
exercisable for such securities, and (B) the date of the expiration of the Rights. The Company
will also take such action as may be appropriate under, or to ensure compliance with, the
securities or “blue sky” laws of the various states in connection with the exercisability of the
Rights. The Company may temporarily suspend, for a period of time not to exceed 120 days after the
date set forth in clause (i) of the first sentence of this Section 9(b), the exercisability of the
Rights in order to prepare and file such registration statement and permit it to become effective.
Upon any such suspension, the Company shall issue a public announcement stating that the
exercisability of the Rights has been temporarily suspended, as well as a public announcement at
such time as the suspension is no longer in effect. Notwithstanding any provision of this
Agreement to the contrary, the Rights shall not be exercisable in any jurisdiction unless the
requisite qualification in such jurisdiction shall have been obtained.


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


(d) The Company further covenants and agrees that it will pay when due and payable any and all
federal and state transfer taxes and charges which may be payable in respect of the issuance or
delivery of the Right Certificates or of any Preferred Shares upon the exercise of Rights. The
Company shall not, however, be required to pay any transfer tax which may be payable in respect of
any transfer or delivery of Right Certificates to a Person other than, or the issuance or delivery
of certificates or depositary receipts or entries in the book-entry account system of the transfer
agent for the Preferred Shares in a name other than that of, the registered holder of the Right
Certificate evidencing Rights surrendered for exercise or to issue or to deliver any certificates
for Preferred Shares or depositary receipts or entries in the book-entry account system of the
transfer agent for Preferred Shares upon the exercise of any Rights until any such tax shall



-9-









 







have been paid (any such tax being payable by the holder of such Right Certificate at the time of
surrender) or until it has been established to the Company’s satisfaction that no such tax is due.


Section 10. Preferred Shares Record Date. Each Person in whose name any certificate or
entry in the book-entry account system of the transfer agent for a number of one one-hundredths of
a Preferred Share is issued upon the exercise of Rights shall for all purposes be deemed to have
become the holder of record of the Preferred Shares represented thereby on, and such certificate or
entry in the book-entry account system of the transfer agent shall be dated, the date upon which
the Right Certificate evidencing such Rights was duly surrendered and payment of the Purchase Price
(and any applicable transfer taxes) was made; provided, however, that, if the date
of such surrender and payment is a date upon which the Preferred Shares transfer books of the
Company are closed, such Person shall be deemed to have become the record holder of such shares on,
and such certificate or entry in the book-entry account system of the transfer agent shall be
dated, the next succeeding Business Day on which the Preferred Shares transfer books of the Company
are open. Prior to the exercise of the Rights evidenced thereby, the holder of a Right Certificate
shall not be entitled to any rights of a stockholder of the Company with respect to shares for
which the Rights shall be exercisable, including, without limitation, the right to vote, to receive
dividends or other distributions or to exercise any preemptive rights, and shall not be entitled to
receive any notice of any proceedings of the Company, except as provided herein.


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


(a) (i) In the event the Company shall at any time after the date of this Agreement (A) declare a
dividend on the Preferred Shares payable in Preferred Shares, (B) subdivide the outstanding
Preferred Shares, (C) combine the outstanding Preferred Shares into a smaller number of Preferred
Shares or (D) issue any shares of its capital stock in a reclassification of the Preferred Shares
(including any such reclassification in connection with a consolidation or merger in which the
Company is the continuing or surviving corporation), except as otherwise provided in this Section
11(a), the Purchase Price in effect at the time of the record date for such dividend or of the
effective date of such subdivision, combination or reclassification, and the number and kind of
shares of capital stock issuable on such date, shall be proportionately adjusted so that the holder
of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase
Price then in effect, the aggregate number and kind of shares of capital stock which, if such Right
had been exercised immediately prior to such date and at a time when the Preferred Shares transfer
books of the Company were open, such holder would have owned upon such exercise and been entitled
to receive by virtue of such dividend, subdivision, combination or reclassification;
provided, however, that in no event shall the consideration to be paid upon the
exercise of one Right be less than the aggregate par value of the shares of capital stock of the
Company issuable upon exercise of one Right.



          If an event occurs which would require an adjustment under both Section 11(a)(i) and Section
11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall
be made prior to, any adjustment required pursuant to Section 11(a)(ii).



-10-









 





     (ii) Subject to Section 24 hereof, in the event any Person becomes an Acquiring Person, each
holder of a Right shall thereafter have a right to receive, upon exercise thereof at a price equal
to the then current Purchase Price multiplied by the number of one one-hundredths of a Preferred
Share for which a Right is then exercisable, in accordance with the terms of this Agreement and in
lieu of Preferred Shares, such number of Common Shares of the Company as shall equal the result
obtained by (A) multiplying the then current Purchase Price by the number of one one-hundredths of
a Preferred Share for which a Right is then exercisable, and dividing that product by (B) 50% of
the then current per share market price of the Common Shares of the Company (determined pursuant to
Section 11(d) hereof) on the date of the occurrence of such event. In the event that any Person
shall become an Acquiring Person and the Rights shall then be outstanding, the Company shall not
take any action which would eliminate or diminish the benefits intended to be afforded by the
Rights.



          From and after the occurrence of such event, any Rights that are or were acquired or
beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person)
shall be void, and any holder of such Rights shall thereafter have no right to exercise such Rights
under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3
hereof that represents Rights beneficially owned by an Acquiring Person whose Rights would be void
pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate
shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights
would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any
nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to
the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the
preceding sentence shall be cancelled.



     (iii) In the event that there shall not be sufficient Common Shares issued but not outstanding
or authorized but unissued to permit the exercise in full of the Rights in accordance with
subparagraph (ii) above, the Company shall take all such action as may be necessary to authorize
additional Common Shares for issuance upon exercise of the Rights. In the event the Company shall,
after good faith effort, be unable to take all such action as may be necessary to authorize such
additional Common Shares, the Company shall substitute, for each Common Share that would otherwise
be issuable upon exercise of a Right, a number of Preferred Shares or fraction thereof such that
the current per share market price of one Preferred Share (determined pursuant to Section 11(d)
hereof) multiplied by such number or fraction is equal to the current per share market price of one
Common Share as of the date of issuance of such Preferred Shares or fraction thereof.


(b) In case the Company shall fix a record date for the issuance of rights, options or warrants to
all holders of Preferred Shares entitling them (for a period expiring within 45 calendar days after
such record date) to subscribe for or purchase Preferred Shares (or shares having the same rights,
privileges and preferences as the Preferred Shares (“equivalent preferred shares”)) or
securities convertible into Preferred Shares or equivalent preferred shares at a price per
Preferred Share or equivalent preferred share (or having a conversion price per share, if a
security convertible into Preferred Shares or equivalent preferred shares) less than the then
current per share market price of the Preferred Shares 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



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Shares outstanding on such record date plus the number of Preferred Shares which the aggregate
offering price of the total number of Preferred Shares and/or equivalent preferred shares so to be
offered (and/or the aggregate initial conversion price of the convertible securities so to be
offered) would purchase at such current market price and the denominator of which shall be the
number of Preferred Shares outstanding on such record date plus the number of additional Preferred
Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which
the convertible securities so to be offered are initially convertible); provided,
however, that in no event shall the consideration to be paid upon the exercise of one Right
be less than the aggregate par value of the shares of capital stock of the Company issuable upon
exercise of one Right. In case such subscription price may be paid in a consideration part or all
of which shall be in a form other than cash, the value of such consideration shall be as determined
in good faith by the Board of Directors of the Company, whose determination shall be described in a
statement filed with the Rights Agent and shall be binding on the Rights Agent and holders of the
Rights. Preferred Shares owned by or held for the account of the Company shall not be deemed
outstanding for the purpose of any such computation. Such adjustment shall be made successively
whenever such a record date is fixed; and, in the event that such rights, options or warrants are
not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in
effect if such record date had not been fixed.


(c) In case the Company shall fix a record date for the making of a distribution to all holders of
the Preferred Shares (including any such distribution made in connection with a consolidation or
merger in which the Company is the continuing or surviving corporation) of evidences of
indebtedness or assets (other than a regular quarterly cash dividend or a dividend payable in
Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b)
hereof), the Purchase Price to be in effect after such record date shall be determined by
multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the
numerator of which shall be the then-current per share market price of the Preferred Shares on such
record date, less the fair market value (as determined in good faith by the Board of Directors of
the Company, whose determination shall be described in a statement filed with the Rights Agent and
shall be binding on the Rights Agent and holders of the Rights) of the portion of the assets or
evidences of indebtedness so to be distributed or of such subscription rights or warrants
applicable to one Preferred Share and the denominator of which shall be such then-current per share
market price of the Preferred Shares on such record date; provided, however, that
in no event shall the consideration to be paid upon the exercise of one Right be less than the
aggregate par value of the shares of capital stock of the Company 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.


(d) (i) For the purpose of any computation hereunder, the “current per share market price” of any
security (other than the Preferred Shares, whose current per share market price will be determined
in accordance with Section 11(d)(ii) below) (a “Security” for the purpose of this Section
11(d)(i)) on any date shall be deemed to be the average of the daily closing prices per share of
such Security for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately
prior to such date; provided, however, that, in the event that the current per
share market price of the Security is determined during a period following the announcement by the
issuer of such Security of (A) a dividend or distribution on such Security payable in shares of
such



-12-









 







Security or Securities convertible into such shares, or (B) any subdivision, combination or
reclassification of such Security and prior to the expiration of 30 Trading Days after the
ex-dividend date for such dividend or distribution, or the record date for such subdivision,
combination or reclassification, then, and in each such case, the current per share market price
shall be appropriately adjusted to reflect the current market price per share equivalent of such
Security. The closing price for each day shall be the last sale price, regular way, reported at or
prior to 4:00 P.M. Eastern time or, in case no such sale takes place on such day, the average of
the bid and asked prices, regular way, reported as of 4:00 P.M. Eastern time, in either case, as
reported in the principal consolidated transaction reporting system with respect to securities
listed or admitted to trading on NYSE or, if the Security is not listed or admitted to trading on
NYSE, 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 reported at or prior to 4:00 P.M. Eastern time or, if
not so quoted, the average of the high bid and low asked prices in the over-the-counter market, as
reported as of 4:00 P.M. Eastern time by NYSE 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. 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 but are quoted on NYSE, a day on which NYSE is in operation or if the Security
is neither listed nor admitted to trading on any national securities exchange, a Business Day. If
the current per share market price of the Security cannot be determined in the manner provided
above, or if the Security is not publicly held or not so listed or traded, “current per share
market price” of the Security shall mean the fair value per share 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 for all purposes.



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


(e) 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; provided, however, that
any adjustments which by reason of this Section 11(e) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All calculations under this Section
11 shall be made to the nearest cent or to the nearest one one-millionth of a Preferred Share or
one ten-thousandth of any other share or security as the case may be. Notwithstanding the



-13-









 







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


(f) If, as a result of an adjustment made pursuant to Section 11(a) hereof, the holder of any Right
thereafter exercised shall become entitled to receive any shares of capital stock of the Company
other than Preferred Shares, 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
Section 11(a) through (c) hereof, inclusive, and the provisions of Sections 7, 9, 10 and 13 hereof
with respect to the Preferred Shares shall apply on like terms to any such other shares.


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


(h) Unless the Company shall have exercised its election as provided in Section 11(i) hereof, upon
each adjustment of the Purchase Price as a result of the calculations made in Sections 11(b) and
(c) hereof, each Right outstanding immediately prior to the making of such adjustment shall
thereafter evidence the right to purchase, at the adjusted Purchase Price, that number of one
one-hundredths of a Preferred Share (calculated to the nearest one one-millionth of a Preferred
Share) obtained by (A) multiplying (x) the number of one one-hundredths of a share covered by a
Right immediately prior to this adjustment by (y) the Purchase Price in effect immediately prior to
such adjustment of the Purchase Price and (B) dividing the product so obtained by the Purchase
Price in effect immediately after such adjustment of the Purchase Price.


(i) The Company may elect, on or after the date of any adjustment of the Purchase Price, to adjust
the number of Rights in substitution for any adjustment in the number of one one-hundredths of a
Preferred Share purchasable upon the exercise of a Right. Each of the Rights outstanding after
such adjustment of the number of Rights shall be exercisable for the number of one one-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 one ten-thousandth) obtained by dividing the Purchase Price in
effect immediately prior to adjustment of the Purchase Price by the Purchase Price in effect
immediately after adjustment of the Purchase Price. The Company shall make a public announcement
of its election to adjust the number of Rights, indicating the record date for the adjustment, and,
if known at the time, the amount of the adjustment to be made. This record date may be the date on
which the Purchase Price is adjusted or any day thereafter, but, if the Right Certificates have
been issued, shall be at least 10 days later than the date of the public announcement. If Right
Certificates have been issued, upon each adjustment of the number of Rights pursuant to this
Section 11(i), the Company shall, as promptly as practicable, cause to be distributed to holders of
record of Right Certificates on such record date Right Certificates evidencing, subject to Section
14 hereof, the additional Rights to which such holders shall be entitled as a result of such
adjustment, or, at the option of the Company, shall cause to be distributed to such holders of
record in substitution and replacement for the Right Certificates



-14-









 







held by such holders prior to the date of adjustment, and upon surrender thereof, if required by
the Company, new Right Certificates evidencing all the Rights to which such holders shall be
entitled after such adjustment. Right Certificates so to be distributed shall be issued, executed
and countersigned in the manner provided for herein, and shall be registered in the names of the
holders of record of Right Certificates on the record date specified in the public announcement.


(j) Irrespective of any adjustment or change in the Purchase Price or in the number of one
one-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 and the
number of one one-hundredths of a Preferred Share which were expressed in the initial Right
Certificates issued hereunder.


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


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


(m) Anything in this Section 11 to the contrary notwithstanding, the Company shall be entitled to
make such reductions in the Purchase Price, in addition to those adjustments expressly required by
this Section 11, as and to the extent that it, in its sole discretion, shall determine to be
advisable in order that any consolidation or subdivision of the Preferred Shares, issuance wholly
for cash of any 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 in Section 11(b) hereof, hereafter made by the Company to holders
of the Preferred Shares shall not be taxable to such stockholders.


(n) In the event that, at any time after the date of this Agreement and prior to the Distribution
Date, the Company shall (i) declare or pay any dividend on the Common Shares payable in Common
Shares, or (ii) effect a subdivision, combination or consolidation of the Common Shares (by
reclassification or otherwise than by payment of dividends in Common Shares) into a greater or
lesser number of Common Shares, then, in any such case, (A) the number of one one-hundredths of a
Preferred Share purchasable after such event upon proper exercise of each Right shall be determined
by multiplying the number of one one-hundredths of a Preferred Share so purchasable immediately
prior to such event by a fraction, the numerator of which is the number of Common Shares
outstanding immediately before such event and the denominator of which



-15-









 







is the number of Common Shares outstanding immediately after such event, and (B) each Common Share
outstanding immediately after such event shall have issued with respect to it that number of Rights
which each Common Share outstanding immediately prior to such event had issued with respect to it.
The adjustments provided for in this Section 11(n) shall be made successively whenever such a
dividend is declared or paid or such a subdivision, combination or consolidation is effected.


Section 12. Certificate of Adjusted Purchase Price or Number of Shares. Whenever an
adjustment is made as provided in Section 11 or 13 hereof, the Company shall promptly (a) prepare a
certificate setting forth such adjustment and a brief statement of the facts accounting for such
adjustment, (b) file with the Rights Agent and with each transfer agent for the Common Shares or
the Preferred Shares and the Securities and Exchange Commission a copy of such certificate and (c)
if such adjustment occurs at any time after the Distribution Date, mail a brief summary thereof to
each holder of a Right Certificate in accordance with Section 25 hereof.


Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earning Power. In the
event, directly or indirectly, at any time after a Person has become an Acquiring Person, (a) the
Company shall consolidate with, or merge with and into, any other Person, (b) any Person shall
consolidate with the Company, or merge with and into the Company and the Company shall be the
continuing or surviving corporation of such merger and, in connection with such merger, all or part
of the Common Shares shall be changed into or exchanged for stock or other securities of any other
Person (or the Company) or cash or any other property, or (c) the Company shall sell or otherwise
transfer (or one or more of its Subsidiaries shall sell or otherwise transfer), in one or more
transactions, assets or earning power aggregating 50% or more of the assets or earning power of the
Company and its Subsidiaries (taken as a whole) to any other Person other than the Company or one
or more of its wholly-owned Subsidiaries, then, and in each such case, proper provision shall be
made so that (i) each holder of a Right (except as otherwise provided herein) shall thereafter have
the right to receive, upon the exercise thereof at a price equal to the then current Purchase Price
multiplied by the number of one one-hundredths of a Preferred Share for which a Right is then
exercisable, in accordance with the terms of this Agreement and in lieu of Preferred Shares, such
number of Common Shares of such other Person (including the Company as successor thereto or as the
surviving corporation) as shall equal the result obtained by (A) multiplying the then current
Purchase Price by the number of one one-hundredths of a Preferred Share for which a Right is then
exercisable and dividing that product by (B) 50% of the then current per share market price of the
Common Shares of such other Person (determined pursuant to Section 11(d) hereof) on the date of
consummation of such consolidation, merger, sale or transfer; (ii) the issuer of such Common Shares
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 issuer; and (iv) such issuer shall take such
steps (including, but not limited to, the reservation of a sufficient number of its Common Shares
in accordance with Section 9 hereof) in connection with such consummation as may be necessary to
assure that the provisions hereof shall thereafter be applicable, as nearly as reasonably may be,
in relation to the Common Shares of the Company thereafter deliverable upon the exercise of the
Rights. The Company shall not consummate any such consolidation, merger, sale or transfer unless,
prior thereto, the Company and such issuer shall have executed and delivered to the Rights Agent a
supplemental agreement so providing. The Company shall not enter into any transaction of the kind
referred to in this Section 13 if at



-16-









 







the time of such transaction there are any rights, warrants, instruments or securities outstanding
or any agreements or 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. The
provisions of this Section 13 shall similarly apply to successive mergers or consolidations or
sales or other transfers.


Section 14. Fractional Rights and Fractional Shares. (a) The Company shall not be
required to issue fractions of Rights or to distribute Right Certificates which evidence fractional
Rights. If the Company elects not to issue such fractional Rights, the Company shall pay, in lieu
of such fractional Rights, 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(a), the current
market value of a whole Right shall be the closing price of the Rights for the Trading Day
immediately prior to the date on which such fractional Rights would have been otherwise issuable.
The closing price for any day shall be the last sale price, regular 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 NYSE or, if the Rights are not listed or admitted to
trading on NYSE, 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 NYSE or such other system
then in use or, if on any such date the Rights are not quoted by any such organization, the average
of the closing bid and asked prices as furnished by a professional market maker making a market in
the Rights selected by the Board of Directors of the Company. If on any such date no such market
maker is making a market in the Rights, the fair value of the Rights on such date as determined in
good faith by the Board of Directors of the Company shall be used.


(b) The Company shall not be required to issue fractions of Preferred Shares (other than fractions
which are integral multiples of one one-hundredth of a Preferred Share) upon exercise of the Rights
or to distribute certificates or make any entries in the book-entry account system of the transfer
agent that evidence fractional Preferred Shares (other than fractions which are integral multiples
of one one-hundredth of a Preferred Share). Fractions of Preferred Shares in integral multiples of
one one-hundredth of a Preferred Share may, at the election of the Company, be evidenced by
depositary receipts, pursuant to an appropriate agreement between the Company and a depositary
selected by it; provided that such 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. If
the Company elects not to issue such fractional Preferred Shares that are not integral multiples of
one one-hundredth of a Preferred Share, the Company shall pay, in lieu of such fractional Preferred
Shares, to the registered holders of Right Certificates at the time such Rights are exercised as
herein provided an amount in cash equal to the same fraction of the current market value of one
Preferred Share. For the purposes of this Section 14(b), the current market value of a Preferred
Share shall be the closing price of a Preferred Share (as determined pursuant to the second
sentence of Section 11(d)(i) hereof) for the Trading Day immediately prior to the date of such
exercise.



-17-









 







(c) Notwithstanding anything in this Agreement to the contrary, the Company shall not be required
to issue fractions of Common Shares upon exercise of the Rights or to distribute certificates or
make any entries in the book-entry account system of the transfer agent which evidence fractional
Common Shares. If the Company elects not to issue such fractional Common Shares, the Company shall
pay, in lieu of fractional Common Shares, to the registered holders of Right Certificates at the
time such Rights are exercised as herein provided an amount in cash equal to the same fraction of
the current market value of Common Share. For purposes of this Section 14(c), the current market
value of one Common Share shall be the closing price of one Common Share (as determined pursuant to
Section 11(d)(i)) for the Trading Day immediately prior to the date of such exercise.


(d) The holder of a Right, by the acceptance of the Right, expressly waives such holder’s right to
receive any fractional Rights or any fractional shares upon exercise of a Right (except as provided
above).


Section 15. Rights of Action. All rights of action in respect of this Agreement, excepting
the rights of action vested in the Rights Agent pursuant to Section 18 hereof, are vested in the
respective registered holders of the Right Certificates (and, prior to the Distribution Date, the
registered holders of the Common Shares); and any registered holder of any Right Certificate (or,
prior to the Distribution Date, of the Common Shares), without the consent of the Rights Agent or
of the holder of any other Right Certificate (or, prior to the Distribution Date, of the Common
Shares), may, in such holder’s own behalf and for such holder’s own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the Company to enforce, or otherwise
act in respect of, such holder’s right to exercise the Rights evidenced by such Right Certificate
in the manner provided in such Right Certificate and in this Agreement. Without limiting the
foregoing or any remedies available to the holders of Rights, it is specifically acknowledged that
the holders of Rights would not have an adequate remedy at law for any breach of this Agreement,
and will be entitled to specific performance of the obligations under, and injunctive relief
against actual or threatened violations of the obligations of any Person subject to, this
Agreement.


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


(a) prior to the Distribution Date, the Rights will be evidenced by the balances indicated in the
book-entry account system of the transfer agent for the Common Shares registered in the names of
the holders of the Common Shares (which Common Shares shall also be deemed to represent
certificates for Rights) or, in the case of certificated shares, the certificates for the Common
Shares registered in the names of the holders of the Common Shares (which certificates for shares
of Common Shares shall also constitute certificates for Rights) and each Right will be transferable
only in connection with the transfer of Common Shares;


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



-18-









 







(c) the Company and the Rights Agent may deem and treat the person in whose name the Right
Certificate (or, prior to the Distribution Date, the associated balance indicated in the book-entry
account system of the transfer agent for the Common Stock or, in the case of certificated shares,
the associated Common Shares certificate) is registered as the absolute owner thereof and of the
Rights evidenced thereby (notwithstanding any notations of ownership or writing on the Right
Certificate or the associated balance indicated in the book-entry account system of the transfer
agent for the Common Stock or, in the case of certificated shares, 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; and


(d) 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, decree or ruling issued by a court of competent jurisdiction
or by a governmental, regulatory or administrative agency or commission, or any statute, rule,
regulation or executive order promulgated or enacted by any governmental authority, prohibiting or
otherwise restraining performance of such obligation; provided, however, the Company must use its
reasonable best efforts to have any such order, decree or ruling lifted or otherwise overturned as
soon as possible.


Section 17. Right Certificate Holder Not Deemed a Stockholder. No holder, as such, of any
Right Certificate shall be entitled to vote, receive dividends or be deemed for any purpose the
holder of the Preferred Shares or any other securities of the Company which may at any time be
issuable on the exercise of the Rights represented thereby, nor shall anything contained herein or
in any Right Certificate be construed to confer upon the holder of any Right Certificate, as such,
any of the rights of a stockholder of the Company or any right to vote for the election of
directors or upon any matter submitted to stockholders at any meeting thereof, or to give or
withhold consent to any corporate action, or to receive notice of meetings or other actions
affecting stockholders (except as provided in Section 25 hereof), or to receive dividends or
subscription rights, or otherwise, until the Right or Rights evidenced by such Right Certificate
shall have been exercised in accordance with the provisions hereof.


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



          The Rights Agent shall be protected and shall incur no liability for, or in respect of any
action taken, suffered or omitted by it in connection with, its administration of this Agreement in
reliance upon any Right Certificate or certificate for the Preferred Shares or Common Shares or any
balance indicated in the book-entry account system of the transfer agent, or,



-19-









 




for other securities of the Company, instrument of assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice, direction, consent, certificate, statement, or other paper
or document believed by it to be genuine and to be signed, executed and, where necessary, verified
or acknowledged, by the proper person or persons, or otherwise upon the advice of counsel as set
forth in Section 20 hereof.


Section 19. Merger or Consolidation or Change of Name of Rights Agent. Any corporation
into which the Rights Agent or any successor Rights Agent may be merged or with which it may be
consolidated, or any corporation resulting from any merger or consolidation to which the Rights
Agent or any successor Rights Agent shall be a party, or any entity succeeding to the stock
transfer or corporate trust powers of the Rights Agent or any successor Rights Agent, shall be the
successor to the Rights Agent under this Agreement without the execution or filing of any paper or
any further act on the part of any of the parties hereto; provided that such corporation
would be eligible for appointment as a successor Rights Agent under the provisions of Section 21.
The purchase of all or substantially all of the Rights Agent’s assets employed in the performance
of transfer agent activities shall be deemed a merger or consolidation for purposes of this Section
19. 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 the duties and obligations
imposed by this Agreement upon the following terms and conditions, by all of which the Company and
the holders of Right Certificates, by their acceptance thereof, shall be bound:


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


(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it
necessary or desirable that any fact or matter be proved or established by the Company prior to
taking or suffering any action hereunder, such fact or matter (unless other evidence in respect
thereof be herein specifically prescribed) may be deemed to be conclusively proved and established
by a certificate signed by any one of the Chairman of the Board, the Chief Executive



-20-









 







Officer, the President, any Vice President, the Treasurer or the Secretary of the Company and
delivered to the Rights Agent; and such certificate shall be full authorization to the Rights Agent
for any action taken or suffered in good faith by it under the provisions of this Agreement in
reliance upon such certificate.


(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for its own
gross negligence, bad faith or willful misconduct.


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


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


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


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


(h) The Rights Agent and any stockholder, director, officer or employee of the Rights Agent may
buy, sell or deal in any of the Rights or other securities of the Company or become 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 from acting in any other capacity
for the Company or for any other legal entity.



-21-









 







(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or
perform any duty hereunder either itself or by or through its attorneys or agents, and the Rights
Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any
such attorneys or agents or for any loss to the Company resulting from any such act, default,
neglect or misconduct, provided that reasonable care was exercised in the selection and continued
employment thereof.


Section 21. Change of Rights Agent. The Rights Agent or any successor Rights Agent may
resign and be discharged from its duties under this Agreement upon 30 days’ notice in writing
mailed to the Company and to each transfer agent of the Common Shares or Preferred Shares by
registered or certified mail, and to the holders of the Right Certificates by first-class mail. In
the event the transfer agency relationship in effect between the Company and the Rights Agent
terminates, the Rights Agent will be deemed to have resigned automatically and be discharged from
its duties under this Agreement as of the effective date of such termination, and the Company shall
be responsible for sending any required notice. The Company may remove the Rights Agent or any
successor Rights Agent upon 30 days’ notice in writing, mailed to the Rights Agent or successor
Rights Agent, as the case may be, and to each transfer agent of the Common Shares or Preferred
Shares by registered or certified mail, and to the holders of the Right Certificates by first-class
mail. If the Rights Agent shall resign or be removed or shall otherwise become incapable of
acting, the Company shall appoint a successor to the Rights Agent. If the Company shall fail to
make such appointment within a period of 30 days after giving notice of such removal or after it
has been notified in writing of such resignation or incapacity by the resigning or incapacitated
Rights Agent or by the holder of a Right Certificate (which holder shall, with such notice, submit
such holder’s 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 corporation or other entity organized and doing business under the laws of the United
States or of the Commonwealth of Massachusetts (or of any other state of the United States so long
as such corporation or other entity is authorized to do business as a banking institution such
other state), in good standing, which is authorized under such laws to exercise corporate trust or
stock transfer powers and is subject to supervision or examination by federal or state authority
and which has at the time of its appointment as Rights Agent a combined capital and surplus, along
with its Affiliates, 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 or Preferred
Shares, and mail a notice thereof in writing to the registered holders of the Right Certificates.
Failure to give any notice provided for in this Section 21, however, or any defect therein, shall
not affect the legality or validity of the resignation or removal of the Rights Agent or the
appointment of the successor Rights Agent, as the case may be.


Section 22. Issuance of New Right Certificates. Notwithstanding any of the provisions of
this Agreement or of the Rights to the contrary, the Company may, at its option, issue new Right




-22-









 







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


Section 23. Redemption.
(a) The Board of Directors of the Company may, at its option, at
any time prior to 10 days after such time
that any Person becomes an Acquiring Person, redeem all but not less than all the then outstanding
Rights at a redemption price of $0.001 per Right, appropriately adjusted to reflect any stock
split, stock dividend or similar transaction occurring after the date hereof (such redemption price
being hereinafter referred to as the “Redemption Price”). The redemption of the Rights by
the Board of Directors of the Company may be made effective at such time, on such basis and with
such conditions as the Board of Directors of the Company, in its sole discretion, may establish.


(b) Immediately upon the action of the Board of Directors of the Company ordering the redemption of
the Rights pursuant to paragraph (a) of this Section 23, and without any further action and without
any notice, the right to exercise the Rights will terminate and the only right thereafter of the
holders of Rights shall be to receive the Redemption Price. The Company shall promptly give public
notice of any such redemption; provided, however, that the failure to give, or any
defect in, any such notice shall not affect the validity of such redemption. Within 10 days after
such action of the Board of Directors of the Company ordering the redemption of the Rights, the
Company shall mail a notice of redemption to all the holders of the then outstanding Rights at
their last addresses as they appear upon the registry books of the Rights Agent or, prior to the
Distribution Date, on the registry books of the transfer agent for the Common Shares. Any notice
which is mailed in the manner herein provided shall be deemed given, whether or not the holder
receives the notice. Each such notice of redemption will state the method by which the payment of
the Redemption Price will be made. 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 24 hereof, and other than in connection
with the purchase of Common Shares prior to the Distribution Date.


Section 24. Exchange. (a) The Board of Directors of the Company may, at its option, at
any time after any Person becomes an Acquiring Person, exchange all or part of the then outstanding
and exercisable Rights (which shall not include Rights that have become void pursuant to the
provisions of Section 11(a)(ii) hereof) for Common Shares at an exchange ratio of one Common Share
per Right, appropriately adjusted to reflect any adjustment in the number of Rights pursuant to
Section 11(i) (such exchange ratio being hereinafter referred to as the “Exchange Ratio”).
Notwithstanding the foregoing, the Board of Directors of the Company shall not be empowered to
effect such exchange at any time after any Person (other than the Company, any Subsidiary of the
Company, any employee benefit or stock ownership plan of the Company or any such Subsidiary, or any
entity holding Common Shares for or pursuant to the terms of any such plan), together with all
Affiliates and Associates of such Person, becomes the Beneficial Owner of 50% or more of the Common
Shares then outstanding.


(b) Immediately upon the action of the Board of Directors of the Company ordering the exchange of
any Rights pursuant to paragraph (a) of this Section 24 and without any further action



-23-









 







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


(c) In the event that there shall not be sufficient Common Shares issued but not outstanding or
authorized but unissued to permit any exchange of Rights as contemplated in accordance with this
Section 24, the Company shall take all such action as may be necessary to authorize additional
Common Shares for issuance upon exchange of the Rights. In the event the Company shall, after good
faith effort, be unable to take all such action as may be necessary to authorize such additional
Common Shares, the Company shall substitute, for each Common Share that would otherwise be issuable
upon exchange of a Right, 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 as of the date of issuance of such Preferred
Shares or fraction thereof.


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


Section 25. Notice of Certain Events. (a) In case the Company shall, at any time after
the Distribution Date, propose (i) to pay any dividend payable in stock of any class to the holders
of the Preferred Shares or to make any other distribution to the holders of the Preferred Shares
(other than a regular quarterly cash dividend), (ii) to offer to the holders of the Preferred
Shares rights or warrants to subscribe for or to purchase any additional Preferred Shares or shares
of stock of any class or any other securities, rights or options, (iii) to effect any
reclassification of the Preferred Shares (other than a reclassification involving only the
subdivision of outstanding Preferred Shares), (iv) to effect any merger, consolidation or other
combination 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, cash flow or earning power of the Company and its Subsidiaries (taken as a whole) to,
any other Person, (v) to effect the liquidation, dissolution or winding up of the Company, or (vi)
to declare or pay any dividend



-24-









 







on the Common Shares payable in Common Shares or to effect a subdivision, combination or
consolidation of the Common Shares (by reclassification or otherwise than by payment of dividends
in Common Shares), then, in each such case, the Company shall give to each holder of a Right
Certificate, in accordance with Section 26 hereof, a notice of such proposed action, which shall
specify the record date for the purposes of such stock dividend, or distribution of rights or
warrants, or the date on which such reclassification, consolidation, merger, sale, transfer,
liquidation, dissolution, or winding up is to take place and the date of participation therein by
the holders of the Common Shares and/or Preferred Shares, if any such date is to be fixed, and such
notice shall be so given in the case of any action covered by clause (i) or (ii) above at least 10
days prior to the record date for determining holders of the Preferred Shares for purposes of such
action, and, in the case of any such other action, at least 10 days prior to the date of the taking
of such proposed action or the date of participation therein by the holders of the Common Shares
and/or Preferred Shares, whichever shall be the earlier.


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


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


Gaylord Entertainment Company

One Gaylord Drive

Nashville, Tennessee 37214

Attention: General Counsel


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


Computershare Trust Company, N.A.

730 Peachtree Street

Atlanta, Georgia 30308

Attention: Client Services


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



-25-









 







Section 27. Supplements and Amendments. The Company may from time to time supplement or
amend this Agreement without the approval of any holders of Right Certificates in order to cure any
ambiguity, to correct or supplement any provision contained herein which may be defective or
inconsistent with any other provisions herein, or to make any other provisions with respect to the
Rights which the Company may deem necessary or desirable, any such supplement or amendment to be
evidenced by a writing signed by the Company and the Rights Agent; provided,
however, that, from and after such time as any Person becomes an Acquiring Person, this
Agreement shall not be amended in any manner which would adversely affect the interests of the
holders of Rights (other than an Acquiring Person or an Affiliate or Associate thereof). Without
limiting the foregoing, the Company may at any time prior to such time as any Person becomes an
Acquiring Person amend this Agreement to lower the thresholds set forth in Section 1(a) and 3(a)
hereof to not less than 10% (the “Reduced Threshold”) provided, however,
that no Person who beneficially owns a number of Common Shares equal to or greater than the Reduced
Threshold shall become an Acquiring Person unless such Person shall, after the public announcement
of the Reduced Threshold, increase its beneficial ownership of the then outstanding Common Shares
(other than as a result of an acquisition of Common Shares by the Company) to an amount equal to or
greater than the greater of (x) the Reduced Threshold or (y) the sum of (i) the lowest beneficial
ownership of such Person as a percentage of the outstanding Common Shares as of any date on or
after the date of the public announcement of such Reduced Threshold plus (ii) .001%.


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. Determinations and Actions by the Board of Directors, etc. 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 Exchange Act. The Board of
Directors of the Company shall have the exclusive power, authority and discretion to administer
this Agreement and to exercise all rights and powers specifically granted to such 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, but not limited to, a determination to redeem or not
redeem the Rights, to amend the Agreement or to find or to announce publicly that any Person has
become an Acquiring Person). All such actions, calculations, interpretations and determinations
(including, for purposes of clauses (i) and (iii) below, all omissions with respect to the
foregoing) which are done or made by the Board of Directors of the Company or the Company (i) shall
be within the discretion of the Board of Directors, (ii) shall be final, conclusive and binding on
the Company, the Rights Agent, the holders of the Right Certificates and all other parties, and
(iii) shall not subject the Board of Directors of the Company to any liability to the holders of
the Rights and Right Certificates.


Section 30. Benefits of this Agreement. Nothing in this Agreement shall be construed to
give to any Person other than the Company, the Rights Agent and the registered holders of the Right



-26-









 







Certificates (and, prior to the Distribution Date, the Common Shares) any legal or equitable right,
remedy or claim under this Agreement; but this Agreement shall be for the sole and exclusive
benefit of the Company, the Rights Agent and the registered holders of the Right Certificates (and,
prior to the Distribution Date, the Common Shares).


Section 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.


Section 32. Governing Law. This Agreement and each Right Certificate issued hereunder
shall be deemed to be a contract made under the laws of the State of Delaware and for all purposes
shall be governed by and construed in accordance with the laws of such state applicable to
contracts to be made and performed entirely within such state.


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


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 malfunction 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.



-27-









 








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



	 	 	 	 	 	 	 
	Attest:	 	
	 	GAYLORD ENTERTAINMENT COMPANY
	 	 	 	 	 	 	 
	By	 	
/s/ Carter R. Todd

 

Name: Carter R. Todd
	 	By	 	/s/ Colin V. Reed

 

Name: Colin V. Reed
	 	 	Title: SVP and General Counsel	 	 	 	Title: Chairman, President and Chief Executive Officer
	 	 	 	 	 	 	 
	Attest:	 	
	 	COMPUTERSHARE TRUST COMPANY, N.A.
	 	 	 	 	 	 	 
	By	 	/s/ Margaret Dunn

 

Name: Margaret Dunn	 	By	 	/s/ Dennis V. Moccia

 

Name: Dennis V. Moccia
	 	 	Title: Relationship Manager	 	 	 	Title: Managing Director






-28-









 






Exhibit A



FORM


of


CERTIFICATE OF DESIGNATIONS


of


SERIES A JUNIOR PARTICIPATING PREFERRED STOCK


of


GAYLORD ENTERTAINMENT COMPANY



(Pursuant to Section 151
of the
Delaware General Corporation Law)


 






          Gaylord Entertainment Company, a corporation organized and existing under the General
Corporation Law of the State of Delaware (hereinafter called the “Corporation”), hereby certifies
that the following resolution was adopted by the Board of Directors of the Corporation as required
by Section 151 of the General Corporation Law at a meeting duly
called and held on August 12, 2008:


          RESOLVED, that pursuant to the authority granted to and vested in the Board of Directors of
this Corporation (hereinafter called the “Board of Directors” or the “Board”) in accordance with
the provisions of the Certificate of Incorporation, the Board of Directors hereby creates a series
of Preferred Stock, par value $.01 per share, of the Corporation (the “Preferred Stock”), and
hereby states the designation and number of shares, and fixes the relative rights, preferences, and
limitations thereof as follows:



          Series A Junior Participating Preferred Stock:


Section 1. Designation and Amount. The shares of such series shall be designated as
“Series A Junior Participating Preferred Stock” (the “Series A Preferred Stock”) and the number of
shares constituting the Series A Preferred Stock shall be 10,000,000. 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 A 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 A Preferred Stock.


Section 2. Dividends and Distributions.



(A) Subject to the rights of the holders of any shares of any series of Preferred Stock (or
any similar stock) ranking prior and superior to the Series A Preferred Stock with



A-1









 








respect to dividends, the holders of shares of Series A Preferred Stock, in preference to the
holders of Common Stock, par value $.01 per share (the “Common Stock”), of the Corporation,
and of any other junior stock, shall be entitled to receive, when, as and if declared by the
Board of Directors out of funds legally available for the purpose, quarterly dividends
payable in cash on the first day of March, June, September and December in each year (each
such date being referred to herein as a “Quarterly Dividend Payment Date”), commencing on
the first Quarterly Dividend Payment Date after the first issuance of a share or fraction of
a share of Series A Preferred Stock, in an amount per share (rounded to the nearest cent)
equal to the greater of (a) $1 or (b) subject to the provision for adjustment hereinafter
set forth, 100 times the aggregate per share amount of all cash dividends, and 100 times the
aggregate per share amount (payable in kind) of all non-cash dividends or other
distributions, 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 A 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 or combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each such case
the amount to which holders of shares of Series A 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 A Preferred Stock
as provided in paragraph (A) of this Section 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 $1 per share on the Series A
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 A
Preferred Stock from the Quarterly Dividend Payment Date next preceding the date of issue of
such shares, unless the date of issue of such shares is prior to the record date for the
first Quarterly Dividend Payment Date, in which case dividends on such shares shall begin to
accrue from the date of issue of such shares, or unless the date of issue is a Quarterly
Dividend Payment Date or is a date after the record date for the
determination of holders of shares of Series A 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




A-2









 








Series A 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 A Preferred Stock entitled to receive
payment of a dividend or distribution declared thereon, which record date shall be not more
than 60 days prior to the date fixed for the payment thereof.


Section 3. Voting Rights. The holders of shares of Series A Preferred Stock shall have the
following voting rights:



(A) Subject to the provision for adjustment hereinafter set forth, each share of Series A
Preferred Stock shall entitle the holder thereof to 100 votes on all matters submitted to a
vote of the stockholders of the Corporation. 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 or combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common Stock) into
a greater or lesser number of shares of Common Stock, then in each such case the number of
votes per share to which holders of shares of Series A Preferred Stock were entitled
immediately prior to such event shall be adjusted by multiplying such number by a fraction,
the numerator of which is the number of shares of Common Stock outstanding immediately after
such event and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.



(B) Except as otherwise provided herein, in any other Certificate of Designations creating a
series of Preferred Stock or any similar stock, or by law, the holders of shares of Series A
Preferred Stock and the holders of shares of Common Stock and any other capital 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 A
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.


Section 4. Certain Restrictions.



(A) Whenever quarterly dividends or other dividends or distributions payable on the Series A
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 A
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 A 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



A-3









 








winding up) with the Series A Preferred Stock, except dividends paid ratably on the
Series A 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 A 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 (either as to dividends or
upon dissolution, liquidation or winding up) to the Series A Preferred Stock; or



(iv) redeem or purchase or otherwise acquire for consideration any shares of Series
A Preferred Stock, or any shares of stock ranking on a parity with the Series A
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 A Preferred Stock purchased or
otherwise acquired by the Corporation in any manner whatsoever shall be retired and cancelled
promptly after the acquisition thereof. All such shares shall upon their cancellation become
authorized but unissued shares of Preferred Stock and may be reissued as part of a new series of
Preferred Stock subject to the conditions and restrictions on issuance set forth herein, in the
Certificate of Incorporation, or in any other Certificate of Designations creating a series of
Preferred Stock or any similar stock or as otherwise required by law.


Section 6. Liquidation, Dissolution or Winding Up. Upon any liquidation, dissolution or
winding up of the Corporation, 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 A Preferred Stock unless, prior thereto, the holders of shares of Series A Preferred Stock
shall have received $100 per share, plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of such payment, provided that the
holders of shares of Series A Preferred Stock shall be entitled to receive an aggregate amount per
share, subject to the provision for adjustment hereinafter set forth, equal to 100 times the
aggregate amount to be distributed per share to holders of shares of Common Stock, or (2) to the
holders of shares of stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred Stock, except distributions made ratably on
the Series A Preferred Stock and all such parity stock in proportion to the total amounts to which
the holders



A-4









 







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 or combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each such case the
aggregate amount to which holders of shares of Series A Preferred Stock were entitled immediately
prior to such event under the proviso in clause (1) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is the number of shares
of Common Stock that were outstanding immediately prior to such event.


Section 7. Consolidation, Merger, etc. In case the 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 A Preferred Stock shall at the same time be similarly exchanged
or changed into an amount per share, subject to the provision for adjustment hereinafter set forth,
equal to 100 times the aggregate amount of stock, 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 or combination or
consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number of shares of
Common Stock, then in each such case the amount set forth in the preceding sentence with respect to
the exchange or change of shares of Series A 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 A Preferred Stock shall not be redeemable.


Section 9. Rank. The Series A Preferred Stock shall rank, with respect to the payment of
dividends and the distribution of assets, junior to all series of any other class of the
Corporation’s Preferred Stock.


Section 10. Amendment. The Certificate of Incorporation of the Corporation shall not be
amended in any manner which would materially alter or change the powers, preferences or special
rights of the Series A Preferred Stock so as to affect them adversely without the affirmative vote
of the holders of at least two-thirds of the outstanding shares of Series A Preferred Stock, voting
together as a single class.


Section 11. Fractional Shares. The Series A Preferred Stock may be issued in fractions of a share
(in one one-hundredths (1/100) of a share and integral multiples thereof), which 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 A Preferred Stock.



A-5









 








     IN WITNESS WHEREOF, this Certificate of Designations is executed on behalf of the Corporation
this ___ day of ______, 2008.



	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Attest:




	 	 	 	 	 
	 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 



A-6









 






	 	 	 	 	 



Exhibit B




Form of Right Certificate




			
	Certificate No. R-
	 	______ Rights






NOT EXERCISABLE AFTER AUGUST 12, 2011 OR SUCH LATER DATE AS DETERMINED BY THE
COMPANY’S BOARD OR EARLIER IF
REDEMPTION OR EXCHANGE OCCURS. THE RIGHTS ARE SUBJECT TO REDEMPTION AT $.001 PER RIGHT AND TO EXCHANGE ON THE TERMS SET FORTH IN THE
AGREEMENT.



Right Certificate




GAYLORD ENTERTAINMENT COMPANY




          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 Agreement, dated as of August 12, 2008 (the
“Agreement”), between Gaylord Entertainment Company, a Delaware corporation (the “Company”), and
Computershare Trust Company, N.A. (the “Rights Agent”), to purchase from the Company at any time
after the Distribution Date (as such term is defined in the Agreement) and prior to 5:00 P.M.,
Boston, Massachusetts time, on August 12, 2011 (or such later date as determined by the Board of
Directors of the Company (so long as such determination is made prior to August 12, 2011)) at the
principal office of the Rights Agent, or at the office of its successor as Rights Agent, one
one-hundredth of a fully paid non-assessable share of Series A Junior Participating Preferred
Stock, par value $.01 per share, of the Company (the “Preferred Shares”), at a purchase price of
$___ per one one-hundredth of a Preferred Share (the “Purchase Price”), upon
presentation and surrender of this Right Certificate with the Form of Election to Purchase duly
executed. The number of Rights evidenced by this Right Certificate (and the number of one
one-hundredths of a Preferred Share which may be purchased upon exercise hereof) set forth above,
and the Purchase Price set forth above, are the number and Purchase Price as of ______,
______, based on the Preferred Shares as constituted at such date. As provided in the Agreement, the
Purchase Price and the number of one one-hundredths of a Preferred Share which may be purchased
upon the exercise of the Rights evidenced by this Right Certificate are subject to modification and
adjustment upon the happening of certain events.



          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 executive offices of the Company and the offices of the Rights Agent.



B-1









 





          This Right Certificate, with or without other Right Certificates, upon surrender at the
principal office of the Rights Agent, may be exchanged for another Right Certificate or Right
Certificates of like tenor and date evidencing Rights entitling the holder to purchase a like
aggregate number of Preferred Shares as the Rights evidenced 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 Rights evidenced by this Right Certificate (i)
may be redeemed by the Company at a redemption price of $.001 per Right or (ii) may be exchanged in
whole or in part for Preferred Shares or shares of the Company’s Common Stock, par value $.01 per
share.



          No fractional Preferred Shares will be issued upon the exercise of any Right or Rights
evidenced hereby (other than fractions which are integral multiples of one one-hundredth of a
Preferred Share, which may, at the election of the Company, be evidenced by depositary receipts),
but, in lieu thereof, a cash payment will be made, as provided in the Agreement.



          No holder of this Right Certificate 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 evidenced by this Right Certificate shall have been exercised as provided in the
Agreement.



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



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          WITNESS the facsimile signature of the proper officers of the Company and its corporate seal.
Dated as of ______, 2008.



	 	 	 	 	 
	ATTEST:	 	GAYLORD ENTERTAINMENT COMPANY
	 	 	 	 	 
	 
 

Name:	 	
By
	 	 

 

Name:
	Title:	 	
	 	Title:
	Countersigned:	 	 	 	 





[___]



	 	 	 	 	 
	 	 	 
	By  	
 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 



Form of Reverse Side of Right Certificate




FORM OF ASSIGNMENT




(To be executed by the registered holder if such

holder desires to transfer the Right Certificate.)





          FOR
VALUE RECEIVED _________________________________ hereby sells, assigns and
transfers unto __________________________________________________________________________________________


(Please print name and address of transferee)


 


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



Dated: ___________________




	 	 	 	 	 
	 	 	 
	 	
 	 
	 	Signature 	 
	 	 	 
	 


Signature Guaranteed:



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          Signatures must be guaranteed by an eligible guarantor institution which is a participant in
the Securities Transfer Agents Medallion Program (“STAMP”), the New York Stock Exchange, Inc.
Medallion Signature Program (“MSP”), or the Stock Exchanges Medallion Program (“SEMP”), pursuant to
Rule 17Ad-15 promulgated under the Securities Exchange Act of 1934, as amended. Guarantees by a
notary public are not acceptable.



          The undersigned hereby certifies that the Rights evidenced by this Right Certificate are not
beneficially owned by an Acquiring Person or an Affiliate or Associate thereof (as defined in the
Agreement).



	 	 	 	 	 
	 	 	 
	 	
 	 
	 	Signature 	 
	 	 	 
	 



Form of Reverse Side of Right Certificate — continued




FORM OF ELECTION TO PURCHASE




(To be executed if holder desires to exercise

Rights represented by the Right Certificate.)



To: GAYLORD ENTERTAINMENT COMPANY




          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 and requests that certificates for such Preferred Shares be issued in the
name of:



Please insert social security

or other identifying number




 




(Please print name and address)



 




If such number of Rights shall not be all the Rights evidenced 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:



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Please insert social security

or other identifying number




 




(Please print name and address)



 





Dated: _______________________




	 	 	 	 	 
	 	 	 
	 	
 	 
	 	Signature 	 
	 	 	 
	 


Signature Guaranteed:




          Signatures must be guaranteed by an eligible guarantor institution which is a participant in
the Securities Transfer Agents Medallion Program (“STAMP”), the New York Stock Exchange, Inc.
Medallion Signature Program (“MSP”), or the Stock Exchanges Medallion Program (“SEMP”), pursuant to
Rule 17Ad-15 promulgated under the Securities Exchange Act of 1934, as amended. Guarantees by a
notary public are not acceptable.



          The undersigned hereby certifies that the Rights evidenced by this Right Certificate are not
beneficially owned by an Acquiring Person or an Affiliate or Associate thereof (as defined in the
Agreement).



	 	 	 	 	 
	 	 	 
	 	
 	 
	 	Signature 	 
	 	 	 
	 



NOTICE





          The signature in the Form of Assignment or Form of Election to Purchase, as the case may be,
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 the Form of
Election to Purchase, as the case may be, is not completed, the Company and the Rights Agent will
deem the beneficial owner of the Rights evidenced by this Right Certificate to be an Acquiring
Person or an Affiliate or Associate thereof (as defined in the Agreement) and such Assignment or
Election to Purchase will not be honored.



B-5









 





Exhibit C




SUMMARY OF RIGHTS TO PURCHASE

PREFERRED SHARES



Introduction



          On August 12, 2008, the Board of Directors of our Company, Gaylord Entertainment Company, a
Delaware corporation, declared a dividend of one preferred share purchase right (a “Right”) for
each outstanding share of common stock, par value $.01 per share. The dividend is payable on
August 25, 2008 to the stockholders of record on August 25, 2008.


          Our Board has adopted this Rights Agreement to protect stockholders from coercive or otherwise
unfair takeover tactics. In general terms, it works by imposing a significant penalty upon any
person or group that acquires 15% or more of our outstanding common stock without the approval of
our Board. The Rights Agreement should not interfere with any merger or other business combination
approved by our Board.



          For those interested in the specific terms of the Rights Agreement as made between our Company
and Computershare Trust Company, N.A., as the Rights Agent, on August 12, 2008, we provide the
following summary description. Please note, however, that this description is only a summary, and
is not complete, and should be read together with the entire Rights Agreement, which has been filed
with the Securities and Exchange Commission as an exhibit to a Current Report on Form 8-K dated
August ___, 2008. A copy of the agreement is available free of charge from our Company.


The Rights. Our Board authorized the issuance of a Right with respect to each outstanding share of
common stock on August 25, 2008. The Rights will initially trade with, and will be inseparable
from, the common stock. The Rights are evidenced only by the balances indicated in the book-entry
account system of the transfer agent for our common stock or, in the case of certificated shares,
the certificates that represent such shares of common stock. New Rights will accompany any new
shares of common stock we issue after August 25, 2008 until the Distribution Date described below.


Exercise Price. Each Right will allow its holder to purchase from our Company one one-hundredth of
a share of Series A Junior Participating Preferred Stock (“Preferred Share”) for
$95.00, once the
Rights become exercisable. This portion of a Preferred Share will give the stockholder
approximately the same dividend, voting, and liquidation rights as would one share of common stock.
Prior to exercise, the Right does not give its holder any dividend, voting, or liquidation rights.


Exercisability. The Rights will not be exercisable until




	•	 	10 days after the public announcement that a person or group has become an “Acquiring
Person” by obtaining beneficial ownership of 15% or more of our outstanding common stock,
or, if earlier,




C-1









 












	•	 	10 business days (or a later date determined by our Board before any person or group
becomes an Acquiring Person) after a person or group begins a tender or exchange offer which,
if completed, would result in that person or group becoming an Acquiring Person.





          We refer to the date when the Rights become exercisable as the “Distribution Date.” Until
that date, the balances in the book-entry accounting system of the transfer agent for our common
stock or, in the case of certificated shares, common stock certificates will also evidence the
Rights, and any transfer of shares of common stock or, in the case of certificated shares,
certificates for common stock will constitute a transfer of Rights. After that date, the Rights
will separate from the common stock and be evidenced solely by Rights certificates that we will
mail to all eligible holders of common stock. Any Rights held by an Acquiring Person or any
Associate or Affiliate thereof are void and may not be exercised.



          Our Board may reduce the threshold at which a person or group becomes an Acquiring Person from
15% to not less than 10% of the outstanding common stock.



Consequences of a Person or Group Becoming an Acquiring Person.





	•	 	Flip In. If a person or group becomes an Acquiring Person, all holders of Rights except
the Acquiring Person or any Associate or Affiliate thereof may, for
$95.00, purchase shares of
our common stock with a market value of $190.00, based on the market price of the common stock
prior to such acquisition.
	 
	•	 	Flip Over. If our Company is later acquired in a merger or similar transaction after the
Distribution Date, all holders of Rights except the Acquiring Person or any Associate or
Affiliate thereof may, for $95.00, purchase shares of the acquiring corporation with a market
value of $190.00 based on the market price of the acquiring corporation’s stock, prior to such
merger.





Preferred Share Provisions.



Each one one-hundredth of a Preferred Share, if issued:




	•	 	will not be redeemable.
	 
	•	 	will entitle holders to quarterly dividend payments of $.01 per one one-hundredth of a
share, or an amount equal to the dividend paid on one share of common stock, whichever is
greater.
	 
	•	 	will entitle holders upon liquidation either to receive $1 per one one-hundredth of a share
or an amount equal to the payment made on one share of common stock, whichever is greater.
	 
	•	 	will have the same voting power as one share of common stock.
	 
	•	 	if shares of our common stock are exchanged via merger, consolidation, or a similar
transaction, will entitle holders to a per share payment equal to the payment made on one
share of common stock.




The value of one one-hundredth interest in a Preferred Share should approximate the value of one
share of common stock.



C-2









 







Expiration. The Rights will expire on August 12, 2011, or such later date as determined by the
Board of Directors of the Company (so long as such determination is made prior to August 12, 2011).



Redemption. Our Board may redeem the Rights for $.001
per Right at any time prior to 10 days after such time that any person or group
becomes an Acquiring Person. If our Board redeems any Rights, it must redeem all of the Rights.
Once the Rights are redeemed, the only right of the holders of Rights will be to receive the
redemption price of $.001 per Right. The redemption price will be adjusted if we have a stock
split or stock dividends of our common stock.



Exchange. After a person or group becomes an Acquiring Person, but before an Acquiring Person owns
50% or more of our outstanding common stock, our Board may extinguish the Rights by exchanging one
share of common stock or an equivalent security for each Right, other than Rights held by the
Acquiring Person.


Anti-Dilution Provisions. Our Board may adjust the purchase price of the Preferred Shares, the
number of Preferred Shares issuable and the number of outstanding Rights to prevent dilution that
may occur from a stock dividend, a stock split, a reclassification of the Preferred Shares or
common stock. No adjustments to the Exercise Price of less than 1% will be made.


Amendments. The terms of the Rights Agreement may be amended by our Board without the consent of
the holders of the Rights. However, our Board may not amend the Rights Agreement to lower the
threshold at which a person or group becomes an Acquiring Person to below 10% of our outstanding
common stock. In addition, the Board may not cause a person or group to become an Acquiring Person
by lowering this threshold below the percentage interest that such person or group already owns.
After a person or group becomes an Acquiring Person, our Board may not amend the agreement in a way
that adversely affects holders of the Rights.




C-3