exv4w1




EXHIBIT
4.1

 


Rights Agreement




Dated
as of August 12, 2008,




By and Between




SunPower Corporation




and




Computershare
Trust Company, N.A.,

as Rights Agent









 

 









 











TABLE OF CONTENTS




	 	 	 	 	 
	1. Certain Definitions
	 	 	1	 
	 
	 	 	 	 
	2. Appointment of Rights Agent
	 	 	5	 
	 
	 	 	 	 
	3. Issue of Right Certificates
	 	 	6	 
	 
	 	 	 	 
	4. Form of Right Certificates
	 	 	7	 
	 
	 	 	 	 
	5. Countersignature and Registration
	 	 	8	 
	 
	 	 	 	 
	6. Transfer, Split Up, Combination and Exchange of Right Certificates; Mutilated, Destroyed,
Lost or Stolen Right Certificates
	 	 	8	 
	 
	 	 	 	 
	7. Exercise of Rights; Purchase Price; Expiration Date of Rights
	 	 	9	 
	 
	 	 	 	 
	8. Cancellation and Destruction of Right Certificates
	 	 	10	 
	 
	 	 	 	 
	9. Company Covenants Concerning Securities and Rights
	 	 	10	 
	 
	 	 	 	 
	10. Record Date
	 	 	12	 
	 
	 	 	 	 
	11. Adjustment of Purchase Price, Number and Kind of Securities or Number of Rights
	 	 	12	 
	 
	 	 	 	 
	12. Certificate of Adjusted Purchase Price or Number of Securities
	 	 	23	 
	 
	 	 	 	 
	13. Consolidation, Merger or Sale or Transfer of Assets or Earning Power
	 	 	23	 
	 
	 	 	 	 
	14. Fractional Rights and Fractional Securities
	 	 	25	 
	 
	 	 	 	 
	15. Rights of Action
	 	 	27	 
	 
	 	 	 	 
	16. Agreement of Rights Holders
	 	 	27	 
	 
	 	 	 	 
	17. Right Certificate Holder Not Deemed a Stockholder
	 	 	28	 
	 
	 	 	 	 
	18. Concerning the Rights Agent
	 	 	28	 
	 
	 	 	 	 
	19. Merger or Consolidation or Change of Name of Rights Agent
	 	 	29	 
	 
	 	 	 	 
	20. Duties of Rights Agent
	 	 	29	 
	 
	 	 	 	 
	21. Change of Rights Agent
	 	 	31	 
	 
	 	 	 	 
	22. Issuance of New Right Certificates
	 	 	32	 
	 
	 	 	 	 
	23. Redemption
	 	 	32	 
	 
	 	 	 	 
	24. Exchange
	 	 	33	 
	 
	 	 	 	 
	25. Notice of Certain Events
	 	 	34	 
	 
	 	 	 	 
	26. Notices
	 	 	35	 
	 
	 	 	 	 
	27. Supplements and Amendments
	 	 	35	 
	 
	 	 	 	 
	28. Successors; Certain Covenants
	 	 	36	 
	 
	 	 	 	 
	29. Benefits of This Agreement
	 	 	37	 
	 
	 	 	 	 
	30. Governing Law
	 	 	37	 
	 i






 









 






	 	 	 	 	 
	31. Severability
	 	 	36	 
	 
	 	 	 	 
	32. Descriptive Headings, Etc
	 	 	37	 
	 
	 	 	 	 
	33. Determinations and Actions by the Board
	 	 	37	 
	 
	 	 	 	 
	34. Effective Time
	 	 	37	 
	 
	 	 	 	 
	35. Counterparts
	 	 	37	 
	 
	 	 	 	 
	Exhibit A
	 	 	A-1	 
	 
	 	 	 	 
	Exhibit B
	 	 	B-1	 
	 
	 	 	 	 
	Exhibit C
	 	 	C-1	 
	 
	 	 	 	 
	Exhibit D
	 	 	D-1	 






 ii




 









 





RIGHTS AGREEMENT




     This
Rights Agreement, dated as of August 12, 2008 (this “Agreement”), is made and
entered into by and between SunPower Corporation, a Delaware corporation (the “Company”), and
Computershare Trust Company, N.A., as Rights Agent (the “Rights Agent”).



RECITALS




     WHEREAS,
on August 12, 2008, the Board of Directors authorized a Rights Committee of the Board
of Directors (the “Rights Committee”) to declare a dividend distribution of one Class A right (a
“Class A Right”) for each share of Class A common stock, par value $0.001 per share, of the Company
(a “Class A Common Share”) and one Class B right (a “Class B Right” and, together with the Class A
Rights, the “Rights”) for each share of Class B common stock, par value $0.001 per share, of the
Company (a “Class B Common Share,” and, together with the Class A Common Shares, the “Common
Shares”) outstanding as of the Close of Business (as hereinafter defined) on a record date to be
determined by the Rights Committee (the “Record Date”), each Right initially representing the right
to purchase one one-hundredth of a Preferred Share (as hereinafter defined), on the terms and
subject to the conditions herein set forth, and further authorized and directed the issuance of one
Class A Right (subject to adjustment as provided herein) with respect to each Class A Common Share
and one Class B Right with respect to each Class B Common Share issued or delivered by the Company
(whether originally issued or delivered from the Company’s treasury) after the Record Date but
prior to the earlier of the Distribution Date (as hereinafter defined) and the Expiration Date (as
hereinafter defined) or as provided in Section 22.



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



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



     (a) “Acquiring Person” means any Person (other than the Company or any Related Person) who or
which, together with all Affiliates and Associates of such Person, is or becomes the Beneficial
Owner of (i) 20% or more of the then-outstanding Common Shares or (ii) 20% or more of the
then-outstanding Class B Common Shares; provided, however, that a
Person will not be deemed to have become an Acquiring Person solely as a result of a reduction in
the number of Common Shares or Class B Common Shares outstanding unless and until such time as
(A) such Person or any Affiliate or Associate of such Person thereafter becomes the Beneficial
Owner of additional Common Shares or Class B Common Shares representing 1% or more of the
then-outstanding Common Shares or Class B Common Shares, as the case may be, other than as a result
of a stock dividend, stock split or similar transaction effected by the Company in which all
holders of Common Shares or Class B Common Shares, as the case may be, are treated





 









 









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




     (b) “Affiliate” and “Associate” will have the respective meanings ascribed to such terms in
Rule 12b-2 of the General Rules and Regulations under the Exchange Act, as in effect on the date of
this Agreement, provided, however, that a Person will not be deemed to be the
Affiliate or Associate of another Person solely because either or both Persons are or were
Directors of the Company.



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




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




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




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




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



2









 




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




     (d) “Business Day” means any day other than a Saturday, Sunday or a day on which banking
institutions in the Commonwealth of Massachusetts are authorized or obligated by law or executive order to close.



     (e) “Class A Common Share” has the meaning set forth in the Recitals to this Agreement.



     (f) “Class B Common Share” has the meaning set forth in the Recitals to this Agreement.



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



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



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



     (j) “Class B Right Certificates” means the certificates evidencing the Class B Rights,
substantially in the form attached as Exhibit C.



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



     (l) “Common Shares” when used with reference to the Company means the shares of Class A Common
Shares and the Class B Common Shares, collectively; provided, however, that if the
Company is the continuing or surviving corporation in a transaction described in Section 13(a)(ii),
“Common Shares” when used with reference to the Company means shares of the capital stock or units
of the equity interests with the greatest aggregate voting power of the Company. “Common Shares”
when used with reference to any corporation or other legal entity other than the Company, including
an Issuer, means shares of the capital stock or units of the equity interests with the greatest
aggregate voting power of such corporation or other legal entity.



3









 





     (m) “Company” means SunPower Corporation, a Delaware corporation.



     (n) “Distribution Date” means the earlier of: (i) the Close of Business on the tenth calendar
day following the Share Acquisition Date (or, if the tenth calendar day after the Share Acquisition
Date occurs before the Record Date, the Close of Business on the Record Date), or (ii) the Close of
Business on the tenth Business Day (or, unless the Distribution Date shall have previously
occurred, such later date as may be specified by the Board of Directors of the Company) after the
commencement of a tender or exchange offer by any Person (other than the Company or any Related
Person), if upon the consummation thereof such Person would be the
Beneficial Owner of (A) 20% or
more of the then-outstanding Common Shares or (B) 20% or more of the then-outstanding Class B
Common Shares.



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



     (p) “Expiration Date” means the earliest of (i) the Close of Business on the tenth anniversary
of the Record Date, (ii) the time at which the Rights are redeemed as provided in Section 23, and
(iii) the time at which all exercisable Rights are exchanged as provided in Section 24.



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



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



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



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



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



     (v) “Preferred Shares,” with respect to shares issued upon exercise of Class A Rights, means
shares of Series A Junior Participating Preferred Stock, par value $0.001 per share, of the Company
having substantially the rights and preferences set forth in the form of Certificate of Designation
of Series A Junior Participating Preferred Stock attached as Exhibit A (the “Series A
Preferred Shares”), and, with respect to shares issued upon exercise of Class B Rights, means
shares of Series B Junior Participating Preferred Stock, par value $0.001 per share, of the Company
having substantially the rights and preferences set forth in the form of Certificate of Designation
of Series B Junior Participating Preferred Stock attached as Exhibit B (the “Series B
Preferred Shares”).



     (w) “Purchase Price” means initially $450.00 per one one-hundredth of a Preferred Share,
subject to adjustment from time to time as provided in this Agreement.



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



4









 





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



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



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



     (bb) “Right Certificates” means the Class A Right Certificates and the Class B Right
Certificates, collectively.



     (cc) “Rights
Agent” means Computershare Trust Company, N.A., unless and until a successor
Rights Agent has become such pursuant to the terms of this Agreement, and thereafter, “Rights
Agent” means such successor Rights Agent.



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



     (ee) “Series A Preferred Shares” has the meaning set forth in Section 1(v).



     (ff) “Series B Preferred Shares” has the meaning set forth in Section 1(v).



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



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



     (ii) “Successor in Interest” has the meaning set forth in the Company’s Restated Certificate
of Incorporation, as it may be amended from time to time.



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



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



     2. Appointment of Rights Agent. The Company hereby appoints the Rights Agent to act
as agent for the Company  in



5









 







accordance with the terms and conditions of this Agreement, and the Rights Agent hereby
accepts such appointment and hereby certifies that it complies with the applicable requirements
governing transfer agents and registrars. The Company may from time to time act as Co-Rights Agent
or appoint such Co-Rights Agents as it may deem necessary or
desirable upon 10 days’ prior notice to the Rights Agent. The
Rights Agent shall have no duty to supervise, and in no event be
liable for, the acts or omissions of any such Co-Rights Agent. Any actions which may be
taken by the Rights Agent pursuant to the terms of this Agreement may be taken by any such
Co-Rights Agent. To the extent that any Co-Rights Agent takes any action pursuant to this
Agreement, such Co-Rights Agent will be entitled to all of the rights and protections of, and
subject to all of the applicable duties and obligations imposed upon, the Rights Agent pursuant to
the terms of this Agreement.



     3. Issue of Right Certificates. (a) Until the Distribution Date, (i) the Class A
Rights will be evidenced by the certificates representing Class A Common Shares registered in the
names of the record holders thereof, which certificates representing Class A Common Shares will
also be deemed to be Class A Right Certificates (or, if the Class A Common Shares are
uncertificated, by the registration of the associated Class A Common Shares on the stock transfer
books of the Company), (ii) the Class B Rights will be evidenced by the certificates representing
Class B Common Shares registered in the names of the record holders thereof, which certificates
representing Class B Common Shares will also be deemed to be Class B Right Certificates (or, if the
Class B Common Shares are uncertificated, by the registration of the associated Class B Common
Shares on the stock transfer books of the Company), (iii) the Rights will be transferable only in
connection with the transfer of the underlying Common Shares, and (iv) the transfer of any Common
Shares in respect of which Rights have been issued will also constitute the transfer of the Rights
associated with such Common Shares. Commencing as promptly as practicable after the Record Date,
the Company will make available a copy of a Summary of Rights to Purchase Preferred Stock in
substantially the form attached as Exhibit D to any holder of Rights who may request it
from time to time prior to the Expiration Date.



     (b) Rights will be issued by the Company in respect of all Common Shares (other than Common
Shares issued upon the exercise or exchange of any Right) issued or delivered by the Company
(whether originally issued or delivered from the Company’s treasury) after the Record Date but
prior to the earlier of the Distribution Date and the Expiration Date. Certificates evidencing
such Common Shares will have stamped on, impressed on, printed on, written on, or otherwise affixed
to them the following legend or such similar legend as the Company may deem appropriate and as is
not inconsistent with the provisions of this Agreement, or as may be required to comply with any
applicable law or with any rule or regulation made pursuant thereto or with any rule or regulation
of any stock exchange or quotation system on which the Common Shares may from time to time be
listed or quoted, or to conform to usage:




This Certificate also evidences and entitles the holder hereof to certain Rights as
set forth in a Rights Agreement between SunPower 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 SunPower Corporation. The Rights are not
exercisable prior to the occurrence of certain events specified in the Rights
Agreement. Under certain circumstances, as set forth in the Rights Agreement, such
Rights may be redeemed, may be exchanged,



6









 







may expire, may be amended, or may be evidenced by separate certificates and no
longer be evidenced by this Certificate. SunPower Corporation will mail to the
holder of this Certificate a copy of the Rights Agreement, as in effect on the date
of mailing, without charge promptly after receipt of a written request therefor.
Under certain circumstances as set forth in the Rights Agreement, Rights that are or
were beneficially owned by an Acquiring Person or any Affiliate or Associate of an
Acquiring Person (as such terms are defined in the Rights Agreement) may become null
and void.



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




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



     (d) As promptly as practicable after the Distribution Date, the Company will prepare and
execute, the Rights Agent will countersign and the Company will send or cause to be sent (and the
Rights Agent will, if requested, send), by first class, insured, postage prepaid mail, (i) to each
record holder of Class A Common Shares as of the Close of Business on the Distribution Date, at the
address of such holder shown on the records of the Company, a Class A Right Certificate evidencing
one Class A Right for each Class A Common Share so held, subject to adjustment as provided herein
and (ii) to each record holder of Class B Common Shares as of the Close of Business on the
Distribution Date, at the address of such holder shown on the records of the Company, a Class B
Right Certificate evidencing one Class B Right for each Class B Common Share so held, subject to
adjustment as provided herein. As of and after the Distribution Date, the Rights will be evidenced
solely by such Right Certificates.



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



     4. Form of Right Certificates. The Right Certificates (and the form of election to
purchase and the form of assignment to be printed on the reverse thereof) will be substantially in



7









 







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



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



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



     6. Transfer, Split Up, Combination and Exchange of Right Certificates; Mutilated,
Destroyed, Lost or Stolen Right Certificates. (a) Subject to the provisions of Sections 7(d)
and 14, at any time after the Close of Business on the Distribution Date and prior to the
Expiration Date, any Right Certificate or Right Certificates representing exercisable Rights may be
transferred, split up, combined or exchanged for another Right Certificate or Right Certificates,
entitling the registered holder to purchase a like number of one one-hundredths of a Preferred
Share (or other securities, as the case may be) as the Right Certificate or Right Certificates
surrendered then entitled such holder (or former holder in the case of a transfer) to purchase.
Any registered holder desiring to transfer, split up, combine or exchange any such Right



8









 







Certificate or Right Certificates must make such request in a writing delivered to the Rights
Agent and must surrender the Right Certificate or Right Certificates to be transferred, split up,
combined or exchanged at the principal office of the Rights Agent designated for such purpose.
Thereupon or as promptly as practicable thereafter, subject to the provisions of Sections 7(d) and
14, the Company will prepare, execute and deliver to the Rights Agent, and the Rights Agent will
countersign and deliver, a Right Certificate or Right Certificates, as the case may be, as so
requested. The Company may require payment of a sum sufficient to cover any tax or governmental
charge that may be imposed in connection with any transfer, split up, combination or exchange of
Right Certificates.



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



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



     (b) Upon receipt of a Right Certificate representing exercisable Rights with the form of
election to purchase duly executed, accompanied by payment as described above, the Rights Agent
will promptly (i) requisition from any transfer agent of the Preferred Shares (or make available,
if the Rights Agent is the transfer agent) certificates representing the number of one
one-hundredths of a Preferred Share to be purchased or, in the case of uncertificated shares or
other securities, requisition from any transfer agent therefor a notice setting forth such number
of shares or other securities to be purchased for which registration will be made on the stock
transfer books of the Company (and the Company hereby irrevocably authorizes and directs its
transfer agent to comply with all such requests), or, if the Company elects to deposit Preferred
Shares issuable upon exercise of the Rights hereunder with a depositary agent, requisition from the
depositary agent depositary receipts representing such number of one one-hundredths of a Preferred
Share as are to be purchased (and the Company hereby irrevocably authorizes and directs such
depositary agent to comply with all such requests), (ii) after receipt of such certificates (or
notices or depositary receipts, as the case may be), cause the same to be delivered



9









 







to or upon the order of the registered holder of such Right Certificate, registered in such
name or names as may be designated by such holder, (iii) when appropriate, requisition from the
Company or any transfer agent therefor (or make available, if the Rights Agent is the transfer
agent) certificates representing the number of equivalent common shares (or, in the case of
uncertificated shares, a notice of the number of equivalent common shares for which registration
will be made on the stock transfer books of the Company) to be issued in lieu of the issuance of
Common Shares in accordance with the provisions of Section 11(a)(iii), (iv) when appropriate, after
receipt of such certificates or notices, cause the same to be delivered to or upon the order of the
registered holder of such Right Certificate, registered in such name or names as may be designated
by such holder, (v) when appropriate, requisition from the Company the amount of cash to be paid in
lieu of the issuance of fractional shares in accordance with the provisions of Section 14 or in
lieu of the issuance of Common Shares in accordance with the provisions of Section 11(a)(iii), (vi)
when appropriate, after receipt, deliver such cash to or upon the order of the registered holder of
such Right Certificate, and (vii) when appropriate, deliver any due bill or other instrument
provided to the Rights Agent by the Company for delivery to the registered holder of such Right
Certificate as provided by Section 11(l).



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



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



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



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



10









 





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



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



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



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



     (e) It will use its best efforts (i) to file on appropriate forms, as soon as practicable
following the later of the Share Acquisition Date and the Distribution Date, registration
statements under the Securities Act with respect to the securities issuable upon exercise of the
Rights, (ii) to cause such registration statements to become effective as soon as practicable after
such filing, and (iii) to cause such registration statements to remain effective (with prospectuses
at all times meeting the requirements of the Securities Act) until the earlier of (A) the date as
of which the Rights are no longer exercisable for such securities and (B) the Expiration Date. The
Company will also take such action as may be appropriate under, or to ensure compliance with, the
applicable state securities or “blue sky” laws in connection with the exercisability of the Rights.
The Company may temporarily suspend, for a period of time after the date set forth in clause (i)
of the first sentence of this Section 9(e), the exercisability of the Rights in order to prepare
and file such registration statements and to permit them to become effective. Upon any such
suspension, the Company will issue a public announcement stating that the exercisability of the
Rights has been temporarily suspended, as well as a public announcement at such time as the



11









 







suspension is no longer in effect. In addition, if the Company determines that registration
statements should be filed under the Securities Act or any state securities laws following the
Distribution Date, the Company may temporarily suspend the exercisability of the Rights in each
relevant jurisdiction until such time as registration statements have been declared effective and,
upon any such suspension, the Company will issue a public announcement stating that the
exercisability of the Rights has been temporarily suspended, as well as a public announcement at
such time as the suspension is no longer in effect. Notwithstanding anything in this Agreement to
the contrary, the Rights will not be exercisable in any jurisdiction if the requisite registration
or qualification in such jurisdiction has not been effected or the exercise of the Rights is not
permitted under applicable law.



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



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



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



     11. Adjustment of Purchase Price, Number and Kind of Securities or Number of Rights.
The Purchase Price, the number and kind of securities issuable upon exercise of each Right and the
number of Rights outstanding are subject to adjustment from time to time as provided in this
Section 11.



12









 






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




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




     (A) any Person becomes an Acquiring Person; or




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



13









 







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




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




then, and in each such case, from and after the latest of the Distribution Date, the
Share Acquisition Date and the date of the occurrence of such Flip-in Event, proper
provision will be made so that (A) each holder of a Class A Right, except as provided
below, will thereafter have the right to receive, upon exercise thereof in accordance
with the terms of this Agreement at an exercise price per Class A Right equal to the
product of the then-current Purchase Price multiplied by the number of one
one-hundredths of a Preferred Share for which a Class A Right was exercisable
immediately prior to the date of the occurrence of such Flip-in Event (or, if any other
Flip-in Event shall have previously occurred, the product of the then-current Purchase
Price multiplied by the number of one one-hundredths of a Preferred Share for which a
Class A Right was exercisable immediately prior to the date of the first occurrence of a
Flip-in Event), in lieu of Preferred Shares, such number of Class A Common Shares as
equals the result obtained by (x) multiplying the then-current Purchase Price by the
number of one one-hundredths of a Preferred Share for which a Class A Right was
exercisable immediately prior to the date of the occurrence of such Flip-in Event (or,
if any other Flip-in Event shall have previously occurred, multiplying the then-current
Purchase Price by the number of one one-hundredths of a Preferred Share for which a
Class A Right was exercisable immediately prior to the date of the first occurrence of a
Flip-in Event), and dividing that product by (y) 50% of the current per share market
price of the Class A Common Shares (determined pursuant to Section 11(d)) on the date of
the occurrence of such Flip-in Event and (B) each holder of a Class B Right, except as
provided below, will thereafter have the right to receive, upon exercise thereof in
accordance with the terms of this Agreement at an



14









 







exercise price per Class B Right equal to the product of the then-current Purchase Price
multiplied by the number of one one-hundredths of a Preferred Share for which a Class B
Right was exercisable immediately prior to the date of the occurrence of such Flip-in
Event (or, if any other Flip-in Event shall have previously occurred, the product of the
then-current Purchase Price multiplied by the number of one one-hundredths of a
Preferred Share for which a Class B Right was exercisable immediately prior to the date
of the first occurrence of a Flip-in Event), in lieu of Preferred Shares, such number of
Class B Common Shares as equals the result obtained by (x) multiplying the then-current
Purchase Price by the number of one one-hundredths of a Preferred Share for which a
Class B Right was exercisable immediately prior to the date of the occurrence of such
Flip-in Event (or, if any other Flip-in Event shall have previously occurred,
multiplying the then-current Purchase Price by the number of one one-hundredths of a
Preferred Share for which a Class B Right was exercisable immediately prior to the date
of the first occurrence of a Flip-in Event), and dividing that product by (y) 50% of the
current per share market price of the Class B Common Shares (determined pursuant to
Section 11(d)) on the date of the occurrence of such Flip-in Event. Notwithstanding
anything in this Agreement to the contrary, from and after the first occurrence of a
Flip-in Event, any Rights that are Beneficially Owned by (A) any Acquiring Person (or
any Affiliate or Associate of any Acquiring Person), (B) a transferee of any Acquiring
Person (or any such Affiliate or Associate) who becomes a transferee after the
occurrence of a Flip-in Event, or (C) a transferee of any Acquiring Person (or any such
Affiliate or Associate) who became a transferee prior to or concurrently with the
occurrence of a Flip-in Event pursuant to either (1) a transfer from an Acquiring Person
to holders of its equity securities or to any Person with whom it has any continuing
agreement, arrangement or understanding regarding the transferred Rights or (2) a
transfer which the Directors of the Company have determined is part of a plan,
arrangement or understanding which has the purpose or effect of avoiding the provisions
of this Section 11(a)(ii), and subsequent transferees of any of such Persons, will be
void without any further action and any holder of such Rights will thereafter have no
rights whatsoever with respect to such Rights under any provision of this Agreement.
The Company will use all reasonable efforts to ensure that the provisions of this
Section 11(a)(ii) are complied with, but will have no liability to any holder of Right
Certificates or any other Person as a result of its failure to make any determinations
with respect to an Acquiring Person or its Affiliates, Associates or transferees
hereunder. Upon the occurrence of a Flip-in Event, no Right Certificate that represents
Rights that are or have become void pursuant to the provisions of this Section 11(a)(ii)
will thereafter be issued pursuant to Section 3 or Section 6, and any Right Certificate
delivered to the Rights Agent that represents Rights that are or have become void
pursuant to the provisions of this Section 11(a)(ii) will be canceled. Upon the
occurrence of a Flip-over Event, any Rights that shall not have been previously
exercised pursuant to this Section 11(a)(ii) shall thereafter be exercisable only
pursuant to Section 13 and not pursuant to this Section 11(a)(ii).




     (iii) Upon the occurrence of a Flip-in Event, if there are not sufficient Common Shares
authorized but unissued or issued but not outstanding to permit the issuance



15









 







of all the Common Shares issuable in accordance with Section 11(a)(ii) upon the exercise of
a Right, the Board of Directors of the Company will use its best efforts promptly to authorize
and, subject to the provisions of Section 9(e), make available for issuance additional Common
Shares or other equity securities of the Company having equivalent voting rights and an
equivalent value (as determined in good faith by the Board of Directors of the Company) to the
Class A Common Shares and the Class B Common Shares, as the case may be (for purposes of this
Section 11(a)(iii), “equivalent common shares”). In the event that equivalent common shares are
so authorized, upon the exercise of a Right in accordance with the provisions of Section 7, the
registered holder will be entitled to receive (A) Class A Common Shares or Class B Common Shares,
as the case may be, to the extent any are available, and (B) a number of equivalent common
shares, which the Board of Directors of the Company has determined in good faith to have a value
equivalent to the excess of (x) the aggregate current per share market value on the date of the
occurrence of the most recent Flip-in Event of all the Class A Common Shares or Class B Common
Shares, as the case may be, issuable in accordance with Section 11(a)(ii) upon the exercise of a
Right (the “Exercise Value”) over (y) the aggregate current per share market value on the date
of the occurrence of the most recent Flip-in Event of any Class A Common Shares or Class B
Common Shares, as the case may be, available for issuance upon the exercise of such Right;
provided, however, that if at any time after 90 calendar days after the latest
of the Share Acquisition Date, the Distribution Date and the date of the occurrence of the most
recent Flip-in Event, there are not sufficient Class A Common Shares or Class B Common Shares,
as the case may be, and/or equivalent common shares available for issuance upon the exercise of
a Right, then the Company will be obligated to deliver, upon the surrender of such Right and
without requiring payment of the Purchase Price, Class A Common Shares or Class B Common Shares,
as the case may be (to the extent available), equivalent common shares (to the extent available)
and then cash (to the extent permitted by applicable law and any agreements or instruments to
which the Company is a party in effect immediately prior to the Share Acquisition Date), which
securities and cash have an aggregate value equal to the excess of (1) the Exercise Value over
(2) the product of the then-current Purchase Price multiplied by the number of one
one-hundredths of a Preferred Share for which a Right was exercisable immediately prior to the
date of the occurrence of the most recent Flip-in Event (or, if any other Flip-in Event shall
have previously occurred, the product of the then-current Purchase Price multiplied by the
number of one one-hundredths of a Preferred Share for which a Right would have been exercisable
immediately prior to the date of the occurrence of such Flip-in Event if no other Flip-in Event
had previously occurred). To the extent that any legal or contractual restrictions prevent the
Company from paying the full amount of cash payable in accordance with the foregoing sentence,
the Company will pay to holders of the Rights as to which such payments are being made all
amounts which are not then restricted on a pro rata basis and will continue to make payments on
a pro rata basis as promptly as funds become available until the full amount due to each such
Rights holder has been paid.



     (b) In the event that the Company fixes a record date for the issuance of rights, options or
warrants to all holders of Preferred Shares entitling them (for a period expiring within 45
calendar days after such record date) to subscribe for or purchase Preferred Shares (or securities
having equivalent rights, privileges and preferences as the Preferred Shares (for purposes of this
Section 11(b), “equivalent preferred shares”)) or securities convertible into



16









 







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



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



17








 






(d) (i) (A) For the purpose of any computation hereunder, the “current per share market
price” of Class A Common Shares on any date will be deemed to be the average of the daily
closing prices per share of such Class A Common Shares for the 30 consecutive Trading Days
immediately prior to such date; provided, however, that in the event that
the current per share market price of Class A Common Shares is determined during a period
following the announcement by the Company of (1) a dividend or distribution on such Class A
Common Shares payable in such Class A Common Shares or securities convertible into such
Class A Common Shares (other than the Rights) or (2) any subdivision, combination or
reclassification of such Class A Common Shares, and prior to the expiration of 30 Trading
Days after the ex-dividend date for such dividend or distribution, or the record date for
such subdivision, combination or reclassification, then, and in each such case, the current
per share market price will be appropriately adjusted to take into account ex-dividend
trading or to reflect the current per share market price per Class A Common Share
equivalent. The closing price for each day will be the last sale price, regular way, or, in
case no such sale takes place on such day, the average of the closing bid and asked prices,
regular way, in either case as reported in the principal consolidated quotation system with
respect to securities listed or admitted to trading on The Nasdaq Stock Market or, if the
Class A Common Shares are not listed or admitted to trading on The Nasdaq Stock Market, as
reported in the principal consolidated quotation system with respect to securities listed on
the principal national securities exchange on which the Class A Common Shares are listed or
admitted to trading or, if the Class A Common Shares are not listed or admitted to trading
on any national securities exchange, the last quoted price or, if not so quoted, the average
of the high bid and low asked prices in the over-the-counter market, as reported by such
market then in use, or, if on any such date the Class A Common Shares are not quoted by any
such organization, the average of the closing bid and asked prices as furnished by a
professional market maker making a market in the Class A Common Shares selected by the Board
of Directors of the Company. If the Class A Common Shares are not publicly held or not so
listed or traded, or are not the subject of available bid and asked quotes, “current per
share market price” will mean the fair value per share as determined in good faith by the
Board of Directors of the Company, whose determination will be described in a statement
filed with the Rights Agent.




     (B) For the purpose of any computation hereunder, the “current per share market price”
of Class B Common Shares on any date will be deemed to be the average of the daily closing
prices per share of such Class B Common Shares for the 30 consecutive Trading Days
immediately prior to such date; provided, however, that in the event that
the current per share market price of Class B Common Shares is determined during a period
following the announcement by the Company of (1) a dividend or distribution on such Class B
Common Shares payable in such Class B Common Shares or securities convertible into such
Class B Common Shares (other than the Rights) or (2) any subdivision, combination or
reclassification of such Class B Common Shares, and prior to the expiration of 30 Trading
Days after the ex-dividend date for such dividend or distribution, or the record date for
such subdivision, combination or reclassification, then, and in each such case, the current
per share market price will be appropriately adjusted to take into account ex-dividend
trading or to reflect the current per share market price per



18









 







Class B Common Share equivalent. The closing price for each day will be the last sale
price, regular way, or, in case no such sale takes place on such day, the average of the
closing bid and asked prices, regular way, in either case as reported in the principal
consolidated quotation system with respect to securities listed or admitted to trading on
The Nasdaq Stock Market or, if the Class B Common Shares are not listed or admitted to
trading on The Nasdaq Stock Market, as reported in the principal consolidated quotation
system with respect to securities listed on the principal national securities exchange on
which the Class B Common Shares are listed or admitted to trading or, if the Class B Common
Shares are not listed or admitted to trading on any national securities exchange, the last
quoted price or, if not so quoted, the average of the high bid and low asked prices in the
over-the-counter market, as reported by such market then in use, or, if on any such date the
Class B Common Shares are not quoted by any such organization, the average of the closing
bid and asked prices as furnished by a professional market maker making a market in the
Class B Common Shares selected by the Board of Directors of the Company. If the Class B
Common Shares are not publicly held or not so listed or traded, or are not the subject of
available bid and asked quotes, “current per share market price” will mean the fair value
per share as determined in good faith by the Board of Directors of the Company, whose
determination will be described in a statement filed with the Rights Agent.




     (C) For the purpose of any computation hereunder, the “current per share market price”
of Common Shares (other than Class A Common Shares or Class B Common Shares) on any date
will be deemed to be the average of the daily closing prices per share of such Common Shares
for the 30 consecutive Trading Days immediately prior to such date; provided,
however, that in the event that the current per share market price of Common Shares
is determined during a period following the announcement by the Company of (1) a dividend or
distribution on such Common Shares payable in such Common Shares or securities convertible
into such Common Shares (other than the Rights) or (2) any subdivision, combination or
reclassification of such Common Shares, and prior to the expiration of 30 Trading Days after
the ex-dividend date for such dividend or distribution, or the record date for such
subdivision, combination or reclassification, then, and in each such case, the current per
share market price will be appropriately adjusted to take into account ex-dividend trading
or to reflect the current per share market price per Common Share equivalent. The closing
price for each day will be the last sale price, regular way, or, in case no such sale takes
place on such day, the average of the closing bid and asked prices, regular way, in either
case as reported in the principal consolidated quotation system with respect to securities
listed or admitted to trading on The Nasdaq Stock Market or, if the Common Shares are not
listed or admitted to trading on The Nasdaq Stock Market, as reported in the principal
consolidated quotation system with respect to securities listed on the principal national
securities exchange on which the Common Shares are listed or admitted to trading or, if the
Common Shares are not listed or admitted to trading on any national securities exchange, the
last quoted price or, if not so quoted, the average of the high bid and low asked prices in
the over-the-counter market, as reported by such market then in use, or, if on any such date
the Common Shares are not quoted by any such organization, the average of the closing bid
and asked prices as furnished by a professional market maker making a



19









 







market in the Common Shares selected by the Board of Directors of the Company. If the
Common Shares are not publicly held or not so listed or traded, or are not the subject of
available bid and asked quotes, “current per share market price” will mean the fair value
per share as determined in good faith by the Board of Directors of the Company, whose
determination will be described in a statement filed with the Rights Agent.




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




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



     (e) Except as set forth below, no adjustment in the Purchase Price will be required unless
such adjustment would require an increase or decrease of at least 1% in such price;



20









 




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




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



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



     (h) Unless the Company has exercised its election as provided in Section 11(i), upon each
adjustment of the Purchase Price pursuant to Section 11(b) or Section 11(c), each Right outstanding
immediately prior to the making of such adjustment will thereafter evidence the right to purchase,
at the adjusted Purchase Price, that number of one one-hundredths of a Preferred Share (calculated
to the nearest one one-millionth of a Preferred Share) obtained by (i) multiplying (x) the number
of one one-hundredths of a Preferred Share issuable upon exercise of a Right immediately prior to
such adjustment of the Purchase Price by (y) the Purchase Price in effect immediately prior to such
adjustment of the Purchase Price and (ii) dividing the product so obtained by the Purchase Price in
effect immediately after such adjustment of the Purchase Price.



     (i) The Company may elect, on or after the date of any adjustment of the Purchase Price, to
adjust the number of Rights in substitution for any adjustment in the number of one one-hundredths
of a Preferred Share issuable upon the exercise of a Right. Each of the Rights outstanding after
such adjustment of the number of Rights will be exercisable for the number of one one-hundredths of
a Preferred Share for which a Right was exercisable immediately prior to such adjustment. Each
Right held of record prior to such adjustment of the number of Rights will become that number of
Rights (calculated to the nearest one ten-thousandth) obtained by dividing the Purchase Price in
effect immediately prior to adjustment of the Purchase Price by the Purchase Price in effect
immediately after adjustment of the Purchase Price. The Company will make a public announcement of
its election to adjust the number of Rights, indicating the record date for the adjustment, and, if
known at the time, the amount of the adjustment to be made. Such record date may be the date on
which the Purchase Price is adjusted or any day thereafter, but, if the Right Certificates have
been issued, will be at least 10 calendar days later



21









 







than the date of the public announcement. If Right Certificates have been issued, upon each
adjustment of the number of Rights pursuant to this Section 11(i), the Company will, as promptly as
practicable, cause to be distributed to holders of record of Right Certificates on such record date
Right Certificates evidencing, subject to the provisions of Section 14, the additional Rights to
which such holders are entitled as a result of such adjustment, or, at the option of the Company,
will cause to be distributed to such holders of record in substitution and replacement for the
Right Certificates held by such holders prior to the date of adjustment, and upon surrender thereof
if required by the Company, new Right Certificates evidencing all the Rights to which such holders
are entitled after such adjustment. Right Certificates so to be distributed will be issued,
executed, and countersigned in the manner provided for herein (and may bear, at the option of the
Company, the adjusted Purchase Price) and will be registered in the names of the holders of record
of Right Certificates on the record date specified in the public announcement.



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



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



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



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



22









 





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



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



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




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




     (ii) at any time after a Person has become an Acquiring Person, any Person consolidates
with the Company, or merges with or into the Company, and the Company is the continuing or
surviving corporation of such merger or consolidation and, in connection with such merger or
consolidation, all or part of the Common Shares is changed into or exchanged for stock or
other securities of any other Person or cash or any other property; or




     (iii) at any time after a Person has become an Acquiring Person, the Company, directly
or indirectly, sells or otherwise transfers (or one or more of its Subsidiaries sells or
otherwise transfers), in one or more transactions, assets or earning power (including,
without limitation, securities creating any obligation on the part of the Company and/or any
of its Subsidiaries) representing in the aggregate more than 50% of the assets or earning
power of the Company and its Subsidiaries (taken as a whole) to any Person or Persons other
than the Company or one or more of its wholly owned Subsidiaries;



23









 




then, and in each such case, proper provision will be made so that from and after the latest of the
Share Acquisition Date, the Distribution Date and the date of the occurrence of such Flip-over
Event (A) each holder of a Right thereafter has the right to receive, upon the exercise thereof in
accordance with the terms of this Agreement at an exercise price per Right equal to the product of
the then-current Purchase Price multiplied by the number of one one-hundredths of a Preferred Share
for which a Right was exercisable immediately prior to the Share Acquisition Date, such number of
duly authorized, validly issued, fully paid, nonassessable and freely tradeable Common Shares of
the Issuer, free and clear of any liens, encumbrances and other adverse claims and not subject to
any rights of call or first refusal, as equals the result obtained by (x) multiplying the
then-current Purchase Price by the number of one one-hundredths of a Preferred Share for which a
Right is exercisable immediately prior to the Share Acquisition Date and dividing that product by
(y) 50% of the current per share market price of the Common Shares of the Issuer (determined
pursuant to Section 11(d)), on the date of the occurrence of such Flip-over Event; (B) the Issuer
will thereafter be liable for, and will assume, by virtue of the occurrence of such Flip-over
Event, all the obligations and duties of the Company pursuant to this Agreement; (C) the term
“Company” will thereafter be deemed to refer to the Issuer; and (D) the Issuer will take such steps
(including, without limitation, the reservation of a sufficient number of its Common Shares to
permit the exercise of all outstanding Rights) in connection with such consummation as may be
necessary to assure that the provisions hereof are thereafter applicable, as nearly as reasonably
may be possible, in relation to its Common Shares thereafter deliverable upon the exercise of the
Rights.




     (b) For purposes of this Section 13, “Issuer” means (i) in the case of any Flip-over Event
described in Sections 13(a)(i) or (ii) above, the Person that is the continuing, surviving,
resulting or acquiring Person (including the Company as the continuing or surviving corporation of
a transaction described in Section 13(a)(ii) above), and (ii) in the case of any Flip-over Event
described in Section 13(a)(iii) above, the Person that is the party receiving the greatest portion
of the assets or earning power (including, without limitation, securities creating any obligation
on the part of the Company and/or any of its Subsidiaries) transferred pursuant to such transaction
or transactions; provided, however, that, in any such case, (A) if (1) no class of
equity security of such Person is, at the time of such merger, consolidation or transaction and has
been continuously over the preceding 12-month period, registered pursuant to Section 12 of the
Exchange Act, and (2) such Person is a Subsidiary, directly or indirectly, of another Person, a
class of equity security of which is and has been so registered, the term “Issuer” means such other
Person; and (B) in case such Person is a Subsidiary, directly or indirectly, of more than one
Person, a class of equity security of two or more of which are and have been so registered, the
term “Issuer” means whichever of such Persons is the issuer of the equity security having the
greatest aggregate market value. Notwithstanding the foregoing, if the Issuer in any of the
Flip-over Events listed above is not a corporation or other legal entity having outstanding equity
securities, then, and in each such case, (x) if the Issuer is directly or indirectly wholly owned
by a corporation or other legal entity having outstanding equity securities, then all references to
Common Shares of the Issuer will be deemed to be references to the Common Shares of the corporation
or other legal entity having outstanding equity securities which ultimately controls the Issuer,
and (y) if there is no such corporation or other legal entity having outstanding equity securities,
(I) proper provision will be made so that the Issuer creates or otherwise makes available for
purposes of the exercise of the Rights in accordance with the terms of this



24









 







Agreement, a kind or kinds of security or securities having a fair market value at least equal
to the economic value of the Common Shares which each holder of a Right would have been entitled to
receive if the Issuer had been a corporation or other legal entity having outstanding equity
securities; and (II) all other provisions of this Agreement will apply to the issuer of such
securities as if such securities were Common Shares.



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




     (A) prepare and file a registration statement under the Securities Act with respect to
the Rights and the securities issuable upon exercise of the Rights on an appropriate form,
and use its best efforts to cause such registration statement to (1) become effective as
soon as practicable after such filing and (2) remain effective (with a prospectus at all
times meeting the requirements of the Securities Act) until the Expiration Date;




     (B) take all such action as may be appropriate under, or to ensure compliance with, the
applicable state securities or “blue sky” laws in connection with the exercisability of the
Rights; and




     (C) deliver to holders of the Rights historical financial statements for the Issuer and
each of its Affiliates which comply in all respects with the requirements for registration
on Form 10 under the Exchange Act.



     (d) The provisions of this Section 13 will similarly apply to successive mergers or
consolidations or sales or other transfers. In the event that a Flip-over Event occurs at any time
after the occurrence of a Flip-in Event, except for Rights that have become void pursuant to
Section 11(a)(ii), Rights that shall not have been previously exercised will cease to be
exercisable in the manner provided in Section 11(a)(ii) and will thereafter be exercisable in the
manner provided in Section 13(a).



     14. Fractional Rights and Fractional Securities. (a) The Company will not be required
to issue fractions of Rights or to distribute Right Certificates which evidence fractional



25









 







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



     (b) The Company will not be required to issue fractions of Preferred Shares (other than
fractions which are integral multiples of one one-hundredth of a Preferred Share) upon exercise of
the Rights or to distribute certificates which evidence fractional Preferred Shares or to register
fractional Preferred Shares on the stock transfer books of the Company (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 provides that the holders of
such depositary receipts have all the rights, privileges and preferences to which they are entitled
as beneficial owners of the Preferred Shares represented by such depositary receipts. In lieu of
fractional Preferred Shares that are not integral multiples of one one-hundredth of a Preferred
Share, the Company may pay to any Person to whom or which such fractional Preferred Shares would
otherwise be issuable an amount in cash equal to the same fraction of the current market value of
one Preferred Share. For purposes of this Section 14(b), the current market value of one Preferred
Share is the closing price of the Preferred Shares (as determined in the same manner as set forth
for Common Shares in the second sentence of Section 11(d)(i)) for the Trading Day immediately prior
to the date of such exercise; provided, however, that if the closing price of the
Preferred Shares cannot be so determined, the closing price of the Preferred Shares for such
Trading Day will be conclusively deemed to be an amount equal to the closing price of the Common
Shares (determined pursuant to the second sentence of Section 11(d)(i)) for such Trading Day
multiplied by one hundred (as such number may be appropriately adjusted to reflect events such as
stock splits, stock dividends, recapitalizations or similar transactions relating to the Common
Shares occurring after the date of this Agreement); provided further,
however, that if neither the Common Shares nor the Preferred Shares are



26









 







publicly held or listed or admitted to trading on any national securities exchange, or the
subject of available bid and asked quotes, the current market value of one Preferred Share will
mean the fair value thereof as determined in good faith by the Board of Directors of the Company,
whose determination will be described in a statement filed with the Rights Agent.



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



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



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



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



     (b) After the Distribution Date, the Right Certificates are transferable only on the registry
books of the Rights Agent if surrendered at the principal office of the Rights Agent



27









 







designated for such purpose, duly endorsed or accompanied by a proper instrument of transfer,
and with the appropriate forms and certificates fully completed and executed;



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



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



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



     17. Right Certificate Holder Not Deemed a Stockholder. No holder, as such, of any
Right Certificate will be entitled to vote, receive dividends, or be deemed for any purpose the
holder of Preferred Shares or any other securities of the Company which may at any time be issuable
upon the exercise of the Rights represented thereby, nor will anything contained herein or in any
Right Certificate be construed to confer upon the holder of any Right Certificate, as such, any of
the rights of a stockholder of the Company or any right to vote for the election of Directors or
upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to
any corporate action, or to receive notice of meetings or other actions affecting stockholders
(except as provided in Section 25), or to receive dividends or subscription rights, or otherwise,
until the Right or Rights evidenced by such Right Certificate shall have been exercised in
accordance with the provisions of this Agreement or exchanged pursuant to the provisions of Section
24.



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



28









 







this Agreement, including the costs and expenses of defending against any claim of liability
arising therefrom, directly or indirectly.



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



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



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



     (c)  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.



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



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



29









 





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



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



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



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



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



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



     (h) The Rights Agent and any stockholder, director, officer or employee of the Rights Agent
may buy, sell or deal in any of the Rights or other securities of the Company or become pecuniarily
interested in any transaction in which the Company may be interested, or contract



30









 







with or lend money to the Company or otherwise act as fully and freely as though it were not
Rights Agent under this Agreement. Nothing herein will preclude the Rights Agent from acting in
any other capacity for the Company or for any other Person.



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



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



     21. Change of Rights Agent. The Rights Agent or any successor Rights Agent may resign
and be discharged from its duties under this Agreement upon 30 calendar days’ notice in writing
mailed to the Company and to each transfer agent of the Preferred Shares or the Common Shares by
registered or certified mail, and to the holders of the Right Certificates by first class mail.
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 calendar days’ notice
in writing, mailed to the Rights Agent or successor Rights Agent, as the case may be, and to each
transfer agent of the Preferred Shares and the Common Shares by registered or certified mail, and
to the holders of the Right Certificates by first class mail. If the Rights Agent resigns or is
removed or otherwise becomes incapable of acting, the Company will appoint a successor to the
Rights Agent. If the Company fails to make such appointment within a period of 30 calendar days
after giving notice of such removal or after it has been notified in writing of such resignation or
incapacity by the resigning or incapacitated Rights Agent or by the holder of a Right Certificate
(who will, with such notice, submit his Right Certificate for inspection by the Company), then the
registered holder of any Right Certificate may apply to any court of competent jurisdiction for the
appointment of a new Rights Agent. Any successor Rights Agent, whether appointed by the Company or
by such a court, will be a corporation or other legal entity organized and doing business under the
laws of the United States or of the State of New York (or of any other state of the United States
so long as such corporation is authorized to do business as a banking institution in the State of
New York), in good standing,  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 will be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as



31









 







Rights Agent without further act or deed; but the predecessor Rights Agent will deliver and
transfer to the successor Rights Agent any property at the time held by it hereunder, and execute
and deliver any further assurance, conveyance, act or deed necessary for the purpose. Not later
than the effective date of any such appointment, the Company will file notice thereof in writing
with the predecessor Rights Agent and each transfer agent of the Preferred Shares or the Common
Shares, and mail a notice thereof in writing to the registered holders of the Right Certificates.
Failure to give any notice provided for in this Section 21, however, or any defect therein, will
not affect the legality or validity of the resignation or removal of the Rights Agent or the
appointment of the successor Rights Agent, as the case may be.



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



     23. Redemption. (a) Prior to the Expiration Date, the Board of Directors of the
Company may, at its option, redeem all but not less than all of the then-outstanding Rights at the
Redemption Price at any time prior to the Close of Business on the later of (i) the Distribution
Date and (ii) Share Acquisition Date. Any such redemption will be effective immediately upon the
action of the Board of Directors of the Company ordering the same, unless such action of the Board
of Directors of the Company expressly provides that such redemption will be effective at a
subsequent time or upon the occurrence or nonoccurrence of one or more specified events (in which
case such redemption will be effective in accordance with the provisions of such action of the
Board of Directors of the Company).



     (b) Immediately upon the effectiveness of the redemption of the Rights as provided in Section
23(a), and without any further action and without any notice, the right to exercise the Rights will
terminate and the only right thereafter of the holders of Rights will be to receive the Redemption
Price, without interest thereon. Promptly after the effectiveness of the redemption of the Rights
as provided in Section 23(a), the Company will publicly announce such redemption



32









 






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



     24. Exchange. (a) The Board of Directors of the Company may, at its option, at any
time after the later of the Share Acquisition Date and the Distribution Date, exchange all or part
of the then-outstanding and exercisable Rights (which will not include Rights that have become void
pursuant to the provisions of Section 11(a)(ii)) for Common Shares at an exchange ratio of one
Class A Common Share per Class A Right, or Class B
Common Share per Class B Right and one Common Share per Right, in each case appropriately
adjusted to reflect any stock split, stock dividend or similar transaction occurring after the
Record Date (such exchange ratio being hereinafter referred to as the “Exchange Ratio”). Any such
exchange will be effective immediately upon the action of the Board of Directors of the Company
ordering the same, unless such action of the Board of Directors of the Company expressly provides
that such exchange will be effective at a subsequent time or upon the occurrence or nonoccurrence
of one or more specified events (in which case such exchange will be effective in accordance with
the provisions of such action of the Board of Directors of the Company). Notwithstanding the
foregoing, the Board of Directors of the Company will not be empowered to effect such exchange at
any time after any Person (other than the Company or any Related Person), who or which, together
with all Affiliates and Associates of such Person, becomes the Beneficial Owner of 50% or more of
the then-outstanding Common Shares.



     (b) Immediately upon the effectiveness of the exchange of any Rights as provided in Section
24(a), and without any further action and without any notice, the right to exercise such Rights
will terminate and the only right with respect to such Rights thereafter of the holder of such
Rights will be to receive that number of Common Shares equal to the number of such Rights held by
such holder multiplied by the Exchange Ratio. Promptly after the effectiveness of the exchange of
any Rights as provided in Section 24(a), the Company will publicly announce such exchange and,
within 10 calendar days thereafter, will give notice of such exchange to all of the holders of such
Rights at their last addresses as they appear upon the registry books of the Rights Agent;
provided, however, that the failure to give, or any defect in, such notice will not



33









 







affect the validity of such exchange. Any notice that is mailed in the manner herein provided
will be deemed given, whether or not the holder receives the notice. Each such notice of exchange
will state the method by which the exchange of the Common Shares for Rights will be effected and,
in the event of any partial exchange, the number of Rights which will be exchanged. Any partial
exchange will be effected pro rata based on the number of Rights (other than Rights which have
become void pursuant to the provisions of Section 11(a)(ii)) held by each holder of Rights.



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



     25. Notice of Certain Events. (a) If, after the Distribution Date, the Company
proposes (i) to pay any dividend payable in stock of any class to the holders of Preferred Shares
or to make any other distribution to the holders of Preferred Shares (other than a regular periodic
cash dividend), (ii) to offer to the holders of Preferred Shares rights, options or warrants to
subscribe for or to purchase any additional Preferred Shares or shares of stock of any class or any
other securities, rights or options, (iii) to effect any reclassification of its Preferred Shares
(other than a reclassification involving only the subdivision of outstanding Preferred Shares),
(iv) to effect any consolidation or merger into or with, or to effect any sale or other transfer
(or to permit one or more of its Subsidiaries to effect any sale or other transfer), in one or more
transactions, of assets or earning power (including, without limitation, securities creating any
obligation on the part of the Company and/or any of its Subsidiaries) representing more than 50% of
the assets and earning power of the Company and its Subsidiaries, taken as a whole, to any other
Person or Persons other than the Company or one or more of its wholly owned Subsidiaries, (v) to
effect the liquidation, dissolution or winding up of the Company, or (vi) to declare or pay any
dividend on the Common Shares payable in Common Shares or to effect a subdivision, combination or
reclassification of the Common Shares then, in each such case, the Company will give to each holder
of a Right Certificate, to the extent feasible and in accordance with Section 26, a notice of such
proposed action, which specifies the record date for the purposes of such stock dividend,
distribution or offering of rights, options or warrants, or the date on which such
reclassification, consolidation, merger, sale, transfer, liquidation, dissolution or winding up is
to take place and the date of participation therein by the holders of the Common Shares and/or
Preferred Shares, if any such date is to be fixed, and such notice will be so given, in the case of
any action covered by clause (i) or (ii) above, at least 10 calendar days prior to the record date
for determining holders of the Preferred Shares for purposes of such action, and, in the case of
any such other action, at least 10 calendar days prior to the date of the taking of such proposed
action or the date of participation therein by the holders of the Common Shares and/or Preferred
Shares, whichever is the earlier.



34









 





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



     (c) Notwithstanding anything in this Agreement to the contrary, prior to the Distribution
Date, a filing by the Company with the Securities and Exchange Commission shall constitute
sufficient notice to the holders of any Rights or of any Common Shares for purposes of this
Agreement.



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



	 	 	 	 	 	 	 
	 	 	SunPower Corporation	 	 
	 	 	3939 North First Street	 	 
	 	 	San Jose, California 95134	 	 
	 

	 	Attention: General Counsel	 	 






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



	 	 	 	 	 	 	 
	 	 	Computershare Trust
Company, N.A.
	 	 	250 Royall Street
	 	 	Canton, Massachusetts
02021
	 	 	Attention: Client
Services






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



     27. Supplements and Amendments. Prior to the time at which the Rights cease to be
redeemable pursuant to Section 23, and subject to the penultimate sentence of this Section 27, the
Company may in its sole and absolute discretion, and the Rights Agent will if the Company so
directs, supplement or amend any provision of this Agreement in any respect without the approval of
any holders of Rights or Common Shares. From and after the time at which the Rights cease to be
redeemable pursuant to Section 23, and subject to the penultimate sentence of this Section 27, the
Company may, and the Rights Agent will if the Company so directs, supplement or amend this
Agreement without the approval of any holders of Rights or Common Shares in order (i) to cure any
ambiguity, (ii) to correct or supplement any provision contained herein which may be defective or
inconsistent with any other provisions herein, (iii) to shorten or lengthen any time period
hereunder, or (iv) to supplement or amend the provisions hereunder in



35









 







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



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



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



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



     31. Severability. If any term, provision, covenant or restriction of this Agreement
is held by a court of competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement
will remain in full force and effect and will in no way be affected, impaired or invalidated;
provided, however, that nothing contained in this Section 31 will affect the ability of the Company
under the provisions of Section 27 to supplement or amend this Agreement to replace such invalid,



36









 







void or unenforceable term, provision, covenant or restriction with a legal, valid and
enforceable term, provision, covenant or restriction.



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



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



     34. Effective Time. Notwithstanding anything in this Agreement to the contrary, this
Agreement will not be effective until, and shall become effective concurrently with, the effective
time of the spin-off of the Company from Cypress Semiconductor Corporation, a Delaware corporation
(“Cypress”), by virtue of the payment of Cypress’s dividend of all of the Class B Common Shares
held by it to its stockholders.



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



37









 





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



	 	 	 	 	 
	 	SUNPOWER CORPORATION

 	 
	 	By:  	 /s/
Thomas Werner	 
	 	 	Name:  	 Thomas Werner	 
	 	 	Title:  	 Chief Executive Officer	 
	 
	 	COMPUTERSHARE TRUST COMPANY, N.A.

 	 
	 	By:  	 /s/
Dennis Moccia	 
	 	 	Name:  	 Dennis Moccia	 
	 	 	Title:  	 Managing Director	 
	 




38









 








EXHIBIT A




CERTIFICATE OF DESIGNATION

of

SERIES A JUNIOR PARTICIPATING

PREFERRED STOCK

of

SUNPOWER CORPORATION




(Pursuant to Section 151 of the

General Corporation Law of the State of Delaware)





     SunPower Corporation, a corporation organized and existing under the General Corporation Law
of the State of Delaware (the “Company”), DOES HEREBY CERTIFY:



     That, pursuant to authority vested in the Board of Directors of the Company by its Restated
Certificate of Incorporation, and pursuant to the provisions of Section 151 of the General
Corporation Law, the Board of Directors of the Company has adopted the following resolution
providing for the issuance of a series of Preferred Stock:



     RESOLVED, that pursuant to the authority expressly granted to and vested in the Board of
Directors of the Company (the “Board of Directors” or the “Board”) by the Restated Certificate of
Incorporation of the Company, a series of Preferred Stock, par value $0.001 per share (the
“Preferred Stock”), of the Company be, and it hereby is, created, and that the designation and
amount thereof and the powers, designations, preferences and relative, participating, optional and
other special rights of the shares of such series, and the qualifications, limitations or
restrictions thereof are as follows:



I. Designation and Amount




     The shares of such series will be designated as Series A Junior Participating Preferred Stock
(the “Series A Preferred”) and the number of shares constituting the Series A Preferred is
2,175,000. Such number of shares may be increased or decreased by resolution of the Board;
provided, however, that no decrease will reduce the number of shares of Series A
Preferred 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 Company convertible into Series A Preferred.



II. Dividends and Distributions




     (a) Subject to the rights of the holders of any shares of any series of Preferred Stock
ranking prior to the Series A Preferred with respect to dividends, the holders of shares of
Series A Preferred, in preference to the holders of Class A Common Stock, par value $0.001 per
share (the “Class A Common Stock”), and the holders of Common Stock, par value $0.001 per share
(the “ Common Stock,” and together with the Class A Common Stock, the “Common Stock”) of the
Company, and of any other junior stock, will be entitled to receive, when, as and if



A-1









 







declared by the Board out of funds legally available for the purpose, dividends payable in
cash (except as otherwise provided below) on such dates as are from time to time established for
the payment of dividends on the Common Stock (each such date being referred to herein as a
“Dividend Payment Date”), commencing on the first Dividend Payment Date after the first issuance of
a share or fraction of a share of Series A Preferred (the “First Dividend Payment Date”), in an
amount per share (rounded to the nearest cent) equal to the greater of (i) $1.00 or (ii) subject to
the provision for adjustment hereinafter set forth, one hundred times the aggregate per share
amount of all cash dividends, and one hundred times the aggregate per share amount (payable in
kind) of all non-cash dividends, 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 Dividend Payment Date or, with respect to the
First Dividend Payment Date, since the first issuance of any share or fraction of a share of
Series A Preferred. In the event that the Company at any time (i) declares a dividend on the
outstanding shares of Common Stock payable in shares of Common Stock, (ii) subdivides the
outstanding shares of Common Stock, (iii) combines the outstanding shares of Common Stock into a
smaller number of shares, or (iv) issues any shares of its capital stock in a reclassification of
the outstanding shares of Common Stock (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing or surviving corporation), then, in
each such case and regardless of whether any shares of Series A Preferred are then issued or
outstanding, the amount to which holders of shares of Series A Preferred would otherwise be
entitled immediately prior to such event under clause (ii) of the preceding sentence will 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 Company will declare a dividend on the Series A Preferred as provided in the
immediately preceding paragraph immediately after it declares a dividend on the Common Stock (other
than a dividend payable in shares of Common Stock). Each such dividend on the Series A Preferred
will be payable immediately prior to the time at which the related dividend on the Common Stock is
payable.



     (c) Dividends will accrue on outstanding shares of Series A Preferred from the Dividend
Payment Date next preceding the date of issue of such shares, unless (i) the date of issue of such
shares is prior to the record date for the First Dividend Payment Date, in which case dividends on
such shares will accrue from the date of the first issuance of a share of Series A Preferred or
(ii) the date of issue is a Dividend Payment Date or is a date after the record date for the
determination of holders of shares of Series A Preferred entitled to receive a dividend and before
such Dividend Payment Date, in either of which events such dividends will accrue from such Dividend
Payment Date. Accrued but unpaid dividends will cumulate from the applicable Dividend Payment Date
but will not bear interest. Dividends paid on the shares of Series A Preferred in an amount less
than the total amount of such dividends at the time accrued and payable on such shares will be
allocated pro rata on a share-by-share basis among all such shares at the time outstanding. The
Board may fix a record date for the determination of holders of shares of Series A Preferred
entitled to receive payment of a dividend or distribution declared



A-2









 







thereon, which record date will be not more than 60 calendar days prior to the date fixed for
the payment thereof.



III. Voting Rights




     The holders of shares of Series A Preferred will have the following voting rights:



     (a) Subject to the provision for adjustment hereinafter set forth, each share of Series A
Preferred will entitle the holder thereof to one hundred votes on all matters submitted to a vote
of the stockholders of the Company. In the event the Company at any time (i) declares a dividend
on the outstanding shares of Common Stock payable in shares of Common Stock, (ii) subdivides the
outstanding shares of Common Stock, (iii) combines the outstanding shares of Common Stock into a
smaller number of shares, or (iv) issues any shares of its capital stock in a reclassification of
the outstanding shares of Common Stock (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing or surviving corporation), then, in
each such case and regardless of whether any shares of Series A Preferred are then issued or
outstanding, the number of votes per share to which holders of shares of Series A Preferred would
otherwise be entitled immediately prior to such event will 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 Preferred Stock Designation creating a
series of Preferred Stock or any similar stock, or by law, the holders of shares of Series A
Preferred and the holders of shares of Common Stock and any other capital stock of the Company
having general voting rights will vote together as one class on all matters submitted to a vote of
stockholders of the Company.



     (c) Except as set forth in the Restated Certificate of Incorporation or herein, or as
otherwise provided by law, holders of shares of Series A Preferred will have no voting rights.



IV. Certain Restrictions




     (a) Whenever dividends or other dividends or distributions payable on the Series A Preferred
are in arrears, thereafter and until all accrued and unpaid dividends and distributions, whether or
not declared, on shares of Series A Preferred outstanding have been paid in full, the Company will
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 shares of Series A Preferred;




     (ii) Declare or pay dividends, or make any other distributions, on any shares of stock
ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up)
with the shares of Series A Preferred, except dividends paid ratably on the shares of
Series A Preferred and all such parity stock on which dividends are payable or



A-3









 







in arrears in proportion to the total amounts to which the holders of all such shares
are then entitled;




     (iii) Redeem, 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 shares of Series A Preferred; provided, however, that the Company may at
any time redeem, purchase or otherwise acquire shares of any such junior stock in exchange
for shares of any stock of the Company ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the shares of Series A Preferred; or




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



     (b) The Company will not permit any majority-owned subsidiary of the Company to purchase or
otherwise acquire for consideration any shares of stock of the Company unless the Company could,
under paragraph (a) of this Article IV, purchase or otherwise acquire such shares at such time and
in such manner.



V. Reacquired Shares




     Any shares of Series A Preferred purchased or otherwise acquired by the Company in any manner
whatsoever will be retired and canceled promptly after the acquisition thereof. All such shares
will 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 Restated Certificate of Incorporation of the Company, or in any
other Preferred Stock Designation creating a series of Preferred Stock or any similar stock or as
otherwise required by law.



VI. Liquidation, Dissolution or Winding Up




     Upon any liquidation, dissolution or winding up of the Company, no distribution will be made
(a) to the holders of shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the shares of Series A Preferred unless, prior thereto, the holders
of shares of Series A Preferred 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, however, that the holders of shares of Series A Preferred will be
entitled to receive an aggregate amount per share, subject to the provision for adjustment
hereinafter set forth, equal to one hundred times the aggregate amount to be distributed per share
to holders of shares of Common Stock or (b) to the holders of shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or winding up) with the shares of Series A
Preferred, except distributions made ratably on the shares of Series A Preferred and all such
parity stock in proportion to the total amounts to which the holders of all such shares are
entitled



A-4









 







upon such liquidation, dissolution or winding up. In the event the Company at any time
(i) declares a dividend on the outstanding shares of Common Stock payable in shares of Common
Stock, (ii) subdivides the outstanding shares of Common Stock, (iii) combines the outstanding
shares of Common Stock into a smaller number of shares, or (iv) issues any shares of its capital
stock in a reclassification of the outstanding shares of Common Stock (including any such
reclassification in connection with a consolidation or merger in which the Company is the
continuing or surviving corporation), then, in each such case and regardless of whether any shares
of Series A Preferred are then issued or outstanding, the aggregate amount to which each holder of
shares of Series A Preferred would otherwise be entitled immediately prior to such event under the
proviso in clause (a) of the preceding sentence will 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.



VII. Consolidation, Merger, Etc.




     In the event that the Company enters 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 each such case, each share of Series A
Preferred will at the same time be similarly exchanged for or changed into an amount per share,
subject to the provision for adjustment hereinafter set forth, equal to one hundred 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 Company at any time (a) declares a dividend on the outstanding shares of Common Stock
payable in shares of Common Stock, (b) subdivides the outstanding shares of Common Stock, (c)
combines the outstanding shares of Common Stock in a smaller number of shares, or (d) issues any
shares of its capital stock in a reclassification of the outstanding shares of Common Stock
(including any such reclassification in connection with a consolidation or merger in which the
Company is the continuing or surviving corporation), then, in each such case and regardless of
whether any shares of Series A Preferred are then issued or outstanding, the amount set forth in
the preceding sentence with respect to the exchange or change of shares of Series A Preferred will
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.



VIII. Redemption




     The shares of Series A Preferred are not redeemable.



IX. Rank




     The Series A Preferred rank, with respect to the payment of dividends and the distribution of
assets, pari passu with the Series B Junior Participating Preferred Stock and junior to all other
series of the Company’s Preferred Stock.



A-5









 





X. Amendment




     Notwithstanding anything contained in the Restated Certificate of Incorporation of the Company
to the contrary and in addition to any other vote required by applicable law, the Restated
Certificate of Incorporation of the Company may not be amended in any manner that would materially
alter or change the powers, preferences or special rights of the Series A Preferred so as to affect
them adversely without the affirmative vote of the holders of at least 80% of the outstanding
shares of Series A Preferred, voting together as a single series.



     IN WITNESS WHEREOF, this Certificate of Designation is executed on behalf of the Company by
its [ ] and attested by its [ ] this ___day of                      20___.



	 	 	 	 	 
	 	SUNPOWER CORPORATION

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 
	Attest:
	 	 
	 
	 	 
	 

Name:

	 	 
	Title:
	 	 







A-6











 





EXHIBIT B




CERTIFICATE OF DESIGNATION

of

SERIES B JUNIOR PARTICIPATING

PREFERRED STOCK

of

SUNPOWER CORPORATION




(Pursuant to Section 151 of the

General Corporation Law of the State of Delaware)




     SunPower Corporation, a corporation organized and existing under the General Corporation Law
of the State of Delaware (the “Company”), DOES HEREBY CERTIFY:



     That, pursuant to authority vested in the Board of Directors of the Company by its Restated
Certificate of Incorporation, and pursuant to the provisions of Section 151 of the General
Corporation Law, the Board of Directors of the Company has adopted the following resolution
providing for the issuance of a series of Preferred Stock:



     RESOLVED, that pursuant to the authority expressly granted to and vested in the Board of
Directors of the Company (the “Board of Directors” or the “Board”) by the Restated Certificate of
Incorporation of the Company, a series of Preferred Stock, par value $0.001 per share (the
“Preferred Stock”), of the Company be, and it hereby is, created, and that the designation and
amount thereof and the powers, designations, preferences and relative, participating, optional and
other special rights of the shares of such series, and the qualifications, limitations or
restrictions thereof are as follows:



XI. Designation and Amount




     The shares of such series will be designated as Series B Junior Participating Preferred Stock
(the “Series B Preferred”) and the number of shares constituting the Series B Preferred is
1,575,000. Such number of shares may be increased or decreased by resolution of the Board;
provided, however, that no decrease will reduce the number of shares of Series B
Preferred 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 Company convertible into Series B Preferred.



XII. Dividends and Distributions




     (a) Subject to the rights of the holders of any shares of any series of Preferred Stock
ranking prior to the Series B Preferred with respect to dividends, the holders of shares of
Series B Preferred, in preference to the holders of Class A Common Stock, par value $0.001 per
share (the “Class A Common Stock”), and the holders of Common Stock, par value $0.001 per share
(the “ Common Stock,” and together with the Class A Common Stock, the “Common Stock”) of the
Company, and of any other junior stock, will be entitled to receive, when, as and if



B-1 









 




declared by the Board out of funds legally available for the purpose, dividends payable in
cash (except as otherwise provided below) on such dates as are from time to time established for
the payment of dividends on the Common Stock (each such date being referred to herein as a
“Dividend Payment Date”), commencing on the first Dividend Payment Date after the first issuance of
a share or fraction of a share of Series B Preferred (the “First Dividend Payment Date”), in an
amount per share (rounded to the nearest cent) equal to the greater of (i) $1.00 or (ii) subject to
the provision for adjustment hereinafter set forth, one hundred times the aggregate per share
amount of all cash dividends, and one hundred times the aggregate per share amount (payable in
kind) of all non-cash dividends, 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 Dividend Payment Date or, with respect to the
First Dividend Payment Date, since the first issuance of any share or fraction of a share of Series
B Preferred. In the event that the Company at any time (i) declares a dividend on the outstanding
shares of Common Stock payable in shares of Common Stock, (ii) subdivides the outstanding shares of
Common Stock, (iii) combines the outstanding shares of Common Stock into a smaller number of
shares, or (iv) issues any shares of its capital stock in a reclassification of the outstanding
shares of Common Stock (including any such reclassification in connection with a consolidation or
merger in which the Company is the continuing or surviving corporation), then, in each such case
and regardless of whether any shares of Series B Preferred are then issued or outstanding, the
amount to which holders of shares of Series B Preferred would otherwise be entitled immediately
prior to such event under clause (ii) of the preceding sentence will 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 Company will declare a dividend on the Series B Preferred as provided in the
immediately preceding paragraph immediately after it declares a dividend on the Common Stock (other
than a dividend payable in shares of Common Stock). Each such dividend on the Series B Preferred
will be payable immediately prior to the time at which the related dividend on the Common Stock is
payable.



     (c) Dividends will accrue on outstanding shares of Series B Preferred from the Dividend
Payment Date next preceding the date of issue of such shares, unless (i) the date of issue of such
shares is prior to the record date for the First Dividend Payment Date, in which case dividends on
such shares will accrue from the date of the first issuance of a share of Series B Preferred or
(ii) the date of issue is a Dividend Payment Date or is a date after the record date for the
determination of holders of shares of Series B Preferred entitled to receive a dividend and before
such Dividend Payment Date, in either of which events such dividends will accrue from such Dividend
Payment Date. Accrued but unpaid dividends will cumulate from the applicable Dividend Payment Date
but will not bear interest. Dividends paid on the shares of Series B Preferred in an amount less
than the total amount of such dividends at the time accrued and payable on such shares will be
allocated pro rata on a share-by-share basis among all such shares at the time outstanding. The
Board may fix a record date for the determination of holders of shares of Series B Preferred
entitled to receive payment of a dividend or distribution declared



B-2 









 




thereon, which record date will
be not more than 60 calendar days prior to the date fixed for the payment thereof.




XIII. Voting Rights




     The holders of shares of Series B Preferred will have the following voting rights:



     (a) Subject to the provision for adjustment hereinafter set forth, each share of Series B
Preferred will entitle the holder thereof to eight hundred votes on all matters submitted to a vote
of the stockholders of the Company. In the event the Company at any time (i) declares a dividend
on the outstanding shares of Common Stock payable in shares of Common Stock, (ii) subdivides the
outstanding shares of Common Stock, (iii) combines the outstanding shares of Common Stock into a
smaller number of shares, or (iv) issues any shares of its capital stock in a reclassification of
the outstanding shares of Common Stock (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing or surviving corporation), then, in
each such case and regardless of whether any shares of Series B Preferred are then issued or
outstanding, the number of votes per share to which holders of shares of Series B Preferred would
otherwise be entitled immediately prior to such event will 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 Preferred Stock Designation creating a
series of Preferred Stock or any similar stock, or by law, the holders of shares of Series B
Preferred and the holders of shares of Common Stock and any other capital stock of the Company
having general voting rights will vote together as one class on all matters submitted to a vote of
stockholders of the Company.



     (c) Except as set forth in the Restated Certificate of Incorporation or herein, or as
otherwise provided by law, holders of shares of Series B Preferred will have no voting rights.



XIV. Certain Restrictions




     (a) Whenever dividends or other dividends or distributions payable on the Series B Preferred
are in arrears, thereafter and until all accrued and unpaid dividends and distributions, whether or
not declared, on shares of Series B Preferred outstanding have been paid in full, the Company will
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 shares of Series B Preferred;




     (ii) Declare or pay dividends, or make any other distributions, on any shares of stock
ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up)
with the shares of Series B Preferred, except dividends paid ratably on the shares of Series
B Preferred and all such parity stock on which dividends are payable or



B-3 









 






in arrears in
proportion to the total amounts to which the holders of all such shares are then entitled;




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




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



     (b) The Company will not permit any majority-owned subsidiary of the Company to purchase or
otherwise acquire for consideration any shares of stock of the Company unless the Company could,
under paragraph (a) of this Article IV, purchase or otherwise acquire such shares at such time and
in such manner.



XV. Reacquired Shares




     Any shares of Series B Preferred purchased or otherwise acquired by the Company in any manner
whatsoever will be retired and canceled promptly after the acquisition thereof. All such shares
will 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 Restated Certificate of Incorporation of the Company, or in any
other Preferred Stock Designation creating a series of Preferred Stock or any similar stock or as
otherwise required by law.



XVI. Liquidation, Dissolution or Winding Up




     Upon any liquidation, dissolution or winding up of the Company, no distribution will be made
(a) to the holders of shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the shares of Series B Preferred unless, prior thereto, the holders
of shares of Series B Preferred 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, however, that the holders of shares of Series B Preferred will be
entitled to receive an aggregate amount per share, subject to the provision for adjustment
hereinafter set forth, equal to one hundred times the aggregate amount to be distributed per share
to holders of shares of Common Stock or (b) to the holders of shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or winding up) with the shares of Series B
Preferred, except distributions made ratably on the shares of Series B Preferred and all such
parity stock in proportion to the total amounts to which the holders of all such shares are
entitled upon such



B-4 









 




liquidation, dissolution or winding up. In the event the Company at any time
(i) declares a dividend on the outstanding shares of Common Stock payable in shares of Common
Stock, (ii) subdivides the outstanding shares of Common Stock, (iii) combines the outstanding
shares of
Common Stock into a smaller number of shares, or (iv) issues any shares of its capital stock
in a reclassification of the outstanding shares of Common Stock (including any such
reclassification in connection with a consolidation or merger in which the Company is the
continuing or surviving corporation), then, in each such case and regardless of whether any shares
of Series B Preferred are then issued or outstanding, the aggregate amount to which each holder of
shares of Series B Preferred would otherwise be entitled immediately prior to such event under the
proviso in clause (a) of the preceding sentence will 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.




XVII. Consolidation, Merger, Etc.




     In the event that the Company enters 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 each such case, each share of Series B
Preferred will at the same time be similarly exchanged for or changed into an amount per share,
subject to the provision for adjustment hereinafter set forth, equal to one hundred 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 Company at any time (a) declares a dividend on the outstanding shares of Common Stock
payable in shares of Common Stock, (b) subdivides the outstanding shares of Common Stock, (c)
combines the outstanding shares of Common Stock in a smaller number of shares, or (d) issues any
shares of its capital stock in a reclassification of the outstanding shares of Common Stock
(including any such reclassification in connection with a consolidation or merger in which the
Company is the continuing or surviving corporation), then, in each such case and regardless of
whether any shares of Series B Preferred are then issued or outstanding, the amount set forth in
the preceding sentence with respect to the exchange or change of shares of Series B Preferred will
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.



XVIII. Redemption




     The shares of Series B Preferred are not redeemable.



XIX. Rank




     The Series B Preferred rank, with respect to the payment of dividends and the distribution of
assets, pari passu with the Series A Junior Participating Preferred Stock and junior to all other
series of the Company’s Preferred Stock.



B-5 









 





XX. Amendment




     Notwithstanding anything contained in the Restated Certificate of Incorporation of the Company
to the contrary and in addition to any other vote required by applicable law, the Restated
Certificate of Incorporation of the Company may not be amended in any manner that
would materially alter or change the powers, preferences or special rights of the Series B
Preferred so as to affect them adversely without the affirmative vote of the holders of at least
80% of the outstanding shares of Series B Preferred, voting together as a single series.



     IN WITNESS WHEREOF, this Certificate of Designation is executed on behalf of the Company by
its [ ] and attested by its [ ] this                      day of                      20___.



	 	 	 	 	 
	 	 	SUNPOWER CORPORATION
	 
	 	 	 	 
	 

	 	By: 	 	 
	 

	 	 	 
	 

	 	 	Name:
	 

	 		Title:






	 	 	 
	Attest:
	 	 
	 
	 	 
	 

Name:

	 	 
	Title:
	 	 






B-6 









 





EXHIBIT C





FORM OF CLASS [A] ][B]1 RIGHT CERTIFICATE




	 	 	 
	Certificate No. R-                    

	 	                     Rights





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




Class [A] [B] Right Certificate




SUNPOWER CORPORATION




     This certifies that                     , or registered assigns, is the registered owner of the
number of Class [A] [B] Rights set forth above, each of which entitles the owner thereof, subject
to the terms, provisions, and conditions of the Rights Agreement,
dated as of August 12, 2008 (the “Rights Agreement”), between SunPower Corporation, 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 Rights Agreement)
and prior to 5:00 p.m. (New York City time) on the Expiration Date (as such term is defined in the
Rights Agreement) at the principal office or offices of the Rights Agent designated for such
purpose, one one-hundredth of a fully paid nonassessable share of [Series A] [Series B] Junior
Participating Preferred Stock, par value $0.001 per share (the “Preferred Shares”), of the Company,
at a purchase price of $450.00 per one one-hundredth of a Preferred Share (the “Purchase Price”),
upon presentation and surrender of this Class [A] [B] Right Certificate with the Form of Election
to Purchase and related Certificate duly executed. If this Class [A] [B] Right Certificate is
exercised in part, the holder will be entitled to receive upon surrender hereof another Class [A]
[B] Right Certificate(s) for the number of whole Class [A] [B] Rights not exercised. The number of
Class [A] [B] Rights evidenced by this Class [A] [B] Right Certificate (and the number of one
one-hundredths of a Preferred Share which may be purchased upon exercise thereof) set forth above,
and the Purchase Price set forth above, are the number and Purchase Price as of the date of the
Rights Agreement, based on the Preferred Shares as constituted at such date.





 




			
	1	 	Whenever the designation [A] [B] is used, an “A” should
be inserted in the Class A Right Certificates and a “B” should be inserted in
the Class B Right Certificates.




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



     This Class [A] [B] Right Certificate is subject to all of the terms, provisions and conditions
of the Rights Agreement, which terms, provisions and conditions are hereby incorporated herein by
reference and made a part hereof and to which Rights Agreement reference is hereby made for a full
description of the rights, limitations of rights, obligations, duties and immunities of the Rights
Agent, the Company and the holders of the Right Certificates, which limitations of rights include
the temporary suspension of the exercisability of the Rights under the circumstances specified in
the Rights Agreement. Copies of the Rights Agreement can be obtained from the Company without
charge upon written request therefor. Terms used herein with initial capital letters and not
defined herein are used herein with the meanings ascribed thereto in the Rights Agreement.



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



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



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



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



     No holder of this Class [A] [B] Right Certificate, as such, will be entitled to vote, receive
dividends, or be deemed for any purpose the holder of Preferred Shares or of any other securities
of the Company which may at any time be issuable upon the exercise of the Right or Rights
represented hereby, nor will anything contained herein or in the Rights Agreement be construed to
confer upon the holder hereof, as such, any of the rights of a stockholder of the Company or any
right to vote for the election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of
meetings or other actions affecting stockholders (except as provided in the Rights Agreement), or
to receive dividends or subscription rights, or otherwise, until the Right or Rights evidenced by
this Class [A] [B] Right Certificate have been exercised or exchanged in accordance with the
provisions of the Rights Agreement.



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



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



	 	 	 	 	 
	ATTEST:	 	SUNPOWER CORPORATION
	 
	 	 	 	 
	                                        

	 	By: 	 	 
	 

	 	 	 
	 

	 		Name:
	 

	 		Title:
	 
	 	 	 	 





Countersigned:




COMPUTERSHARE
TRUST COMPANY, N.A.




By:                                                             

      Authorized Signature




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Form of Reverse Side of Class [A] [B] Right Certificate




FORM OF ASSIGNMENT




(To be executed by the registered holder if such

holder desires to transfer the Class [A] [B] Right Certificate)




     FOR VALUE RECEIVED,                                          hereby sells, assigns and transfers unto



 




(Please print name and address of transferee)


 





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



Dated:                     , ____




	 	 	 	 	 
	 

	 	 	 	 
	 

	 	 	 	Signature




Signature Guaranteed:                                         




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CERTIFICATE




     The undersigned hereby certifies by checking the appropriate boxes that:




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



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



Dated:                     , ____




	 	 	 	 	 
	 

	 	 	 	 
	 

	 	 	 	Signature






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FORM OF ELECTION TO PURCHASE




(To be executed if holder desires to

exercise the Right Certificate)




To SunPower Corporation:




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



	 	 	 
	Please insert social security

or other identifying number:
	 	 
	 

	 	 





 




(Please print name and address)


 




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




	 	 	 
	Please insert social security

or other identifying number:
	 	 
	 

	 	 





 




(Please print name and address)



 





Dated:                     , ____




	 	 	 	 	 
	 

	 	 	 	 
	 

	 	 	 	Signature





 Signature Guaranteed:                                         



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CERTIFICATE




     The undersigned hereby certifies by checking the appropriate boxes that:



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



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



Dated:                     , ____




	 	 	 	 	 
	 

	 	 	 	 
	 

	 	 	 	Signature






NOTICE




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



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




C-7









 








EXHIBIT D




SUMMARY OF RIGHTS TO PURCHASE PREFERRED STOCK




     On August 12, 2008, the Board of Directors of SunPower Corporation adopted a rights plan and
authorized a Rights Committee of the Board to declare a dividend of one Class A right for each
share of Class A common stock, par value $0.001 per share, and one right for each share of common
stock, par value $0.001 per share. The dividend is payable on a record date determined by the
Rights Committee to our stockholders of record on that date. The terms of the rights and the
rights plan are set forth in a Rights Agreement, dated as of August 12, 2008, by and between
SunPower and Computershare Trust Company, N.A.,  as rights agent.



     Our Board adopted the rights plan to protect our stockholders from coercive takeover practices
or takeover bids that are inconsistent with their best interests. In general terms, the rights
plan imposes a significant penalty upon any person or group that
acquires (1) 20% or more of our
outstanding common stock or (2) 20% or more of our outstanding
Class B common stock, in each case without
the prior approval of our Board. A person or group that acquires a percentage of our common stock
or common stock in excess of those thresholds is called an “acquiring person.” Any rights held by
an acquiring person are void and may not be exercised.



     This summary of rights provides a general description of the rights plan. Because it is only
a summary, this description should be read together with the entire rights plan, which we
incorporate in this summary by reference. We have filed the rights plan with the Securities and
Exchange Commission as an exhibit to our registration statement on Form 8-A. Upon written request,
we will provide a copy of the rights plan free of charge to any stockholder.


The Rights. Our Board of Directors authorized the issuance of one right per each outstanding share
of our common stock on the record date. If the rights become exercisable, each right would allow
its holder to purchase from us one one-hundredth of a share of preferred stock for a purchase price
of $450.00.  Each fractional share of preferred stock would give the stockholder
approximately the same dividend, voting and liquidation rights as does one share of our Class A
common stock. Prior to exercise, however, a right does not give its holder any dividend, voting or
liquidation rights.



Exercisability. The rights will not be exercisable until the earlier of:





	•	 	10 days after a public announcement by SunPower that a person or group has become an
acquiring person; and






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




We refer to the date that the rights become exercisable as the “distribution date.” Until the
distribution date, our common stock certificates will also evidence the rights and will contain a
notation to that effect. Any transfer of shares of common stock prior to the distribution date
will


D-1









 






constitute a transfer of the associated rights. After the distribution date, the rights will
separate from the common stock and be evidenced by right certificates, which we will mail to all
holders of rights that have not become void.




     Flip-in Event. After the distribution date, if a person or group already is or becomes an
acquiring person, all holders of Class A rights and rights, except the acquiring person, may
exercise their rights upon payment of the purchase price to purchase shares of our Class A common
stock or common stock, as the case may be (or other securities or assets as determined by the
Board), with a market value of two times the purchase price.



     Flip-over Event. After the distribution date, if a flip-in event has already occurred and
SunPower is acquired in a merger or similar transaction, all holders of rights except the acquiring
person may exercise their rights upon payment of the purchase price, to purchase shares of the
acquiring corporation with a market value of two times the purchase price of the rights.



     Rights may be exercised to purchase our preferred shares only after the distribution date
occurs and prior to the occurrence of a flip-in event as described above. A distribution date
resulting from the commencement of a tender offer or exchange offer described in the second bullet
point above could precede the occurrence of a flip-in event, in which case the rights could be
exercised to purchase our preferred shares. A distribution date resulting from any occurrence
described in the first bullet point above would necessarily follow the occurrence of a flip-in
event, in which case the rights could be exercised to purchase shares of Class A common stock,
common stock or other securities as described above.


Expiration.
The rights will expire on the tenth anniversary of the record
date for the distribution of the rights unless earlier redeemed or exchanged.



Redemption. Our Board may redeem all (but not less than all) of the rights for a redemption price
of $0.001 per right at any time before the later of the distribution date and the date of the first
public announcement or disclosure by SunPower that a person or group has become an acquiring
person. Once the rights are redeemed, the right to exercise rights will terminate, and the only
right of the holders of rights will be to receive the redemption price. The redemption price will
be adjusted if we declare a stock split or issue a stock dividend on our common stock.



Exchange. After the later of the distribution date and the date of the first public announcement
by SunPower that a person or group has become an acquiring person, but before an acquiring person
owns 50% or more of our outstanding common stock, our Board may exchange each right (other than
rights that have become void) for one share of Class A common stock or common stock, as the case
may be, or an equivalent security.



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 as a result of certain events, including among others, a stock dividend, a stock split or
a reclassification of the preferred shares or our common stock. No adjustments to the purchase
price of less than 1% will be made.




D-2









 







Amendments. Before the time at which the rights cease to be redeemable, our Board may amend or
supplement the rights plan without the consent of the holders of the rights, except that no
amendment may decrease the redemption price below $0.001 per right. At any time thereafter, our
Board may amend or supplement the rights plan only to cure an ambiguity, to alter time period
provisions, to correct inconsistent provisions or to make any additional changes to the rights
plan, but only to the extent that those changes do not impair or adversely affect the interests of
the holders of rights as such and do not result in the rights again becoming redeemable or cause
the rights plan again to become supplementable or amendable otherwise than in accordance with the
rights plan. The limitations on our Board’s ability to amend the rights plan does not affect our
Board’s power or ability to take any other action that is consistent with its fiduciary duties,
including, without limitation, accelerating or extending the expiration date of the rights, making
any amendment to the rights plan that is permitted by the rights plan or adopting a new rights plan
with such terms as our Board determines in its sole discretion to be appropriate.



Effectiveness.  The rights plan will become
effective concurrently with the effective time of the spin-off
 of the Company from Cypress Semiconductor Corporation by virtue of
 the payment of Cypress’s dividend of all of the Class B common stock held by it
to its stockholders.
 



*
*      *





D-3